(Being an appeal from the conviction and sentence in Msambweni Magistrates Court Sexual Offence Case No. E018 of 2022 decided on 12/7/2023 by Hon. Joy Mutimba, R.M.)
J U D G M E N T
1. The appellant was convicted on the principal charge of the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act (Cap. 63A) Laws of Kenya and sentenced to serve twenty (20) years imprisonment. The particulars of the charge were that on diverse dates between 15th March, 2022 and 24th March 2022 at Pangani village, Lungalunga location Lungalunga Sub-County within Kwale County unlawfully and intentionally caused his penis to penetrate the vagina of M.M.K a girl child aged 16 years.
2. In the alternative, the appellant was charged with committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act, the particulars of location and time being the same as for the principal charge, and that he unlawfully and intentionally caused his penis to touch the vagina of the same child.
3. The appellant was dissatisfied with the conviction and sentence, and has come to this court on appeal based on grounds as set out in his amended grounds of appeal undated but filed in court on 5/8/2024 as follows:
a. The preferred charge was not proved to meet the requirement of section 43 of the SoA on the mainstay of the charge being intentional and unlawful.
b. The learned trial magistrate failed to consider the import of section 8(5) of the SoA under which the case fell.
c. The appellant was subjected to double jeopardy for being tried and convicted of the offence when he had already been punished by the victim’s people at the time of arrest.
d. The learned trial magistrate failed to consider that the burden of proof lay with the prosecution.
e. The learned trial magistrate erred in law and in fact by failing to consider that the system of maximum and minimum sentence as provided for under the SoA was declared unconstitutional by the Supreme Court and thus failed to take into account his mitigation and to exercise her discretion in sentencing.
4. The appeal was canvassed through written submissions filed by the appellant and the respondent which I have duly considered.
5. This being a first appeal, this court is required to re-examine, re-evaluate and analyze 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 a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. R., [1957] E.A. 336) and to the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion (Shantital M. Ruwala v. R., [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’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact the trial court has had the advantage of hearing and seeing the witnesses, see Peters v. Sunday Post, [1958] E.A. 424.”
6. This position is recounted variously in other decisions for instance in Njoroge v Republic (1987) KLR 19.
7. Sections 8 of the Sexual Offences Act under which the offence of defilement and for which the appellant was convicted provides as follows:
1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
2) A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.
3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
4) A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.
5) It is a defence to a charge under this section if—
a) it is proved that such child, deceived the accused person into believing that he or she was over the age of eighteen years at the time of the alleged commission of the offence; and
b) the accused reasonably believed that the child was over the age of eighteen years.
6) The belief referred to in subsection (5)(b) is to be determined having regard to all the circumstances, including any steps the accused person took to ascertain the age of the complainant.
7) Where the person charged with an offence under this Act is below the age of eighteen years, the court may upon conviction, sentence the accused person in accordance with the provisions of the Borstal Institutions Act (Cap. 92) and Children's Act (Cap. 141).
8) The provisions of subsection (5) shall not apply if the accused person is related to such child within the prohibited degrees of blood or affinity.
8. I have set out the entire section because of the appellant’s first ground of appeal and submissions that the charge sheet was defective in so far as the evidence tendered by the prosecution did not prove, according to him, a crucial element of the offence, that is “unlawful and intentional” as stated in the particulars of the charge and secondly because the evidence adduced established that the complainant was 15 years and 9 months old and not 16 years as stated in the particulars of the charge.
9. From the above provisions of the law, the ingredients of the offence of defilement which the prosecution must prove beyond a reasonable doubt are that the complainant was a child, proof of penetration of the complainant’s genital organ by the accused person’s genital organ and positive identification of the accused person as the assailant. Support for the same is found in the case of Gachigi v Republic [2025] KECA 132 (KLR) the Court of Appeal held that:
“The offence of defilement is found in section 8(1) of the Sexual Offences Act. The elements of the offence are that the victim should be under the age of eighteen years, that there is penetration and that the offender should be clearly identified.”
10. The prosecution called four (4) witnesses to support its case. PW 1, M.M. was the complainant, PW 2 J.N.M. is the complainant’s paternal uncle and an eye witness, PW 3, Athman Rajab Ngala, is a clinical officer who examined the complainant and completed her P3 form and PW 4, Cpl Ezekiel Juma was the investigating officer in the case. On his part, the appellant tendered sworn evidence in defence and did not call additional witnesses.
11. The prosecution case was that the appellant, an uncle to the complainant as his brother is married to the complainant’s aunt, went to the complainant’s parents’ house where the complainant was sleeping alone on the night of 23/3/2022, asked her to open the door which she did upon recognizing him because he was well known to him, the appellant had been to that home earlier the same evening and they had engaged in sexual intercourse before on 15/3/2022. He was naked and carrying his clothes in the hands. The complainant had on a “lesso” (loin cloth) without panties. The appellant entered the house and told her he wanted to sleep with her. She told him he could not. He put his hand over her mouth and put his genital organ into her genital organ. He removed his hand from her mouth. The complainant was scared to talk.
12. PW 2, J.N.M who had got out of his house at the time, which is next to the house where the complainant was sleeping, to relieve himself heard murmurs from his brother’s house. He moved closer and peeping through the window he spotted the appellant and the complainant lying on the floor in an embrace. The appellant was naked while the complainant had on a “dera” loose fitting dress. PW 2 called out for the complainant to open the door. She hesitated but then did. The appellant came over to the door and made to flea while naked and covering his private parts with a child’s skirt. PW 2 stopped him, asking him why he wanted to leave and a scuffle ensued. They fell to the ground. In the process, other members of the family came over. The appellant was eventually subdued and escorted to Lunga Lunga police station where the incident was reported. The following day the complainant was taken for medical attention.
13. PW 3, Athman Rajab, the clinical officer gave evidence that the complainant was 16 years old. She informed him that she had sex with the appellant twice, first on 15/3/2022 at 2.00 p.m. and then on 23/3/2022 at 9 p.m. Examination of her genitalia showed that it was normal externally with no bruises nor lacerations but hymen was not intact. There were no significant findings in relation to the issue at hand. The appellant was also examined and no significant findings made in relation to the case at hand. PW 3 gave the appellant’s age as 18 years.
14. PW 4, CPl Ezekiel Juma conducted investigations on the matter and had the appellant charged with the offence. He produced the complainant’s certificate of birth as evidence, Exhibit 4. It showed the complainant was borne on 24/6/2006 making her 15 years and 9 months, shy of 16 years by 3 months.
15. In his defence, the appellant said that he said he went to PW 2’s home for an M-pesa transaction but he was framed for defilement and beaten up. He said that he does not know the complainant and he was not with her on the material night.
16. In this appeal, the appellant submitted that the charge sheet was defective because there was no evidence to prove the elements of the offence namely the act complained of being “unlawful and intentional” as captured in the particulars of the charge and defined under section 43 of the SoA.
17. The words “unlawful and intentional” are not part of the elements of the offence of defilement as laid out above and they need not be proved by the prosecution. Their inclusion in the particulars of the charge was simply surplusage, perhaps being erroneously imported from the offence of rape whose ingredients include those words. The prosecution did not therefore need to prove that the acts complained of were unlawful and intentional.
18. The appellant made extensive submissions that the charge sheet was defective in that respect and that the prosecution had not proved those elements. He followed it up with the submission that the complainant had behaved like an adult and therefore his case came within the provisions of section 8(5) of the SoA. That section, which provides that deception of an accused person by the complainant that she was over the age of eighteen years at the time of commission of the offence sets out a defence to a charge of defilement. However, in this case, the appellant never raised such a defence before the trial court. It is clearly an afterthought meant to aid him in this appeal. It is therefore without merit and those two grounds of appeal must fail.
19. The same fate befalls the third ground of appeal that he was already punished for the offence by the complainant’s relatives when they held a kangaroo court after finding out what he and the complainant had done. The appellant alleged that he will be punished twice for the same offence which will be against the principle of double jeopardy. Again, he never raised that issue before the trial court and so it is not for consideration by this court.
20. But to satisfy his curiosity, I will first lay out the provisions of the law with respect to double jeopardy under Article 50(2)(o) of the Constitution and Section 138 CPC
Article 50(2)(o):
Every accused person has the right to a fair trial, which includes the right not to be tried for an offence in respect of an act or omission for which the accused person has previously been either acquitted or convicted.
Section 138 CPC
A person who has been once tried by a court of competent jurisdiction for an offence and convicted or acquitted of that offence shall, while the conviction or acquittal has not been reversed or set aside, not be liable to be tried again on the same facts for the same offence.
21. As clearly discernible from section 138 expounds on the provisions of Article 150 of the Constitution in that in order for the principle of double jeopardy to apply, it must be shown that the accused person was tried by a court of competent jurisdiction and convicted or acquitted of that offence.for that principle to apply, as laid out in Article 50(2)(o) of the Constitution and Section 138 of the Criminal Procedure Code, (Cap. 75) Laws of Kenya, the appellant must show that he was tried for that offence or for any other criminal offence’ the proceedings which proceedings must be before a court or a judicial tribunal (see the case of Khan & 2 others v Capital Markets Authority (Appeal 2 of 2022) [2024] KECMT 376 (KLR) (2 February 2024) (Judgment) in which the case of Republic v Public Service Commission of Kenya Ex parte James Nene Gachoka, Nairobi Misc. Application 516 of 2005 [2013] is cited. The appellant submits that he was subjected to a kangaroo court. That is not a court or judicial tribunal contemplated under the law.
22. Turning back to the substance of the charge, the burden was on the prosecution to prove their allegations against the appellant beyond a reasonable doubt.
23. The age of the complainant was established through her certificate of birth to be 15 years and 9 months thus making her a child as provided for under section 8(1) of the SoA. There is no dispute over her age. The learned trial magistrate noted the inconsistence of the age indicated in the particulars of the charge as 16 years and the one proved by way of the certificate of birth as 15 years and 9 months. She then found correctly that the statement of the offence was correctly framed under section 8(3) but the particulars of the charge indicated the wrong age. The prosecution did not correct that inconsistence. The learned trial magistrate relying on the case of Elphas Musundi v Republic [2019] KEHC 12183 (KLR) found that there was no prejudice occasioned to the appellant from that inconsistence. The offence of defilement is provided for under section 8(1) of the SoA while subsections (2), (3) and (4) prescribe the minimum sentences for offenders committing the offences with minors of different age brackets. I agree that there is no prejudice occasioned by the inconsistence with respect to proof that the complainant was a minor under section 8(1).
24. Otherwise, the appellant seeking to rely on section 8(5) of the SoA in his submissions means that he appreciated that the complainant was a child because it is only then that the provisions of section 8(5) SoA would come into play. I agree with the learned trial magistrate that the age of the complainant as a child was proved beyond a reasonable doubt to be that of a child as provided under section 8(1) of the SoA.
25. I also agree with the learned trial magistrate that the issue of whether or not there was prejudice with regard to the sentence meted out has to be considered at the point of considering the sentence.
26. On penetration, although in his defence the appellant denied that he committed the offence, his grounds of appeal and submissions indicate that he had conceded that he had sexual intercourse with the complainant only that the complainant deceived him and made him to believe that she was over the age of eighteen years. I have said above that the appellant has brought that issue up on appeal as an afterthought.
27. The complainant said that the appellant had placed his genital organ in hers, thereby penetrating it. The evidence by PW 2 that he found the appellant naked with the complainant and both of them lying on the ground corroborates the complainant’s evidence that he engaged in sexual intercourse with her. I am therefore satisfied that penetration was proved beyond a reasonable doubt.
28. Lastly is the issue of proof of the identity of the culprit. From the evidence on record, PW 1 testified that the appellant was the culprit, and the evidence of PW 2 finding him while naked lying on the floor with the complainant in an embrace is corroboration of the complainant’s evidence that he was the culprit. I find that the prosecution did prove beyond a reasonable doubt that the appellant was the culprit.
29. The appellant submits that the learned trial magistrate approached and determined the issue of sentence on the false law of minimum sentences as prescribed in the Sexual Offences Act without considering that it was declared unconstitutional by the Supreme Court and therefore outdated. He cited several cases to support his submission.
30. It is true as submitted by the appellant that on the strength of the reasoning and decision in the case of Francis Karioko Muruatetu and Another vs Republic [2017] eKLR, the High Court and even the Court of Appeal routinely reviewed minimum sentences imposed on convicts for different offences other than murder, including for sexual offences, such as the ones cited by the appellant herein, and robbery with violence. However, by the clarification made by the same Supreme Court in its subsequent directions given in Muruatetu & Another v Republic; Katiba Institute & 4 others (Amicus Curiae) (Petition 15 & 16 of 2015) [2021] KESC 31 (KLR) (6 July 2021) (Directions), the Supreme Court made it clear that the principles in Muruatetu on sentencing only applied to murder cases, and not to any other type of case, not even sexual offences. The Supreme Court stated thus:
“It has been argued in justifying this state of affairs, that, by paragraph 48 of the Judgment in this matter, or indeed the spirit of the Judgment as a whole, the court has outlawed all mandatory and minimum sentence provisions; and that although Muruatetu specifically dealt with the mandatory death sentence in respect of murder, the decision's expansive reasoning can be applied to other offenses that prescribe mandatory or minimum sentences. Far from it …
We therefore reiterate that this court’s decision in Muruatetu, did not invalidate mandatory sentences or minimum sentences in the Penal Code, the Sexual Offences Act or any other statute…
It should be apparent from the foregoing that Muruatetu cannot be the authority for stating that all provisions of the law prescribing mandatory or minimum sentences are inconsistent with the Constitution.”
31. The Supreme Court has subsequently in its decision in a case of a sexual offence Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) delivered on 12/7/2024 affirmed that position that Muruatetu is not applicable in cases under the Sexual Offences Act.
32. This court is bound by the decision of the Supreme Court and applying the decisions cited herein, I find that the grounds and submissions by the appellant that the learned trial magistrate erred by approaching the issue of sentencing in a wrong way is without merit and the same is rejected.
33. The appellant also states that the trial court failed to abide by the provisions of section 329 of the Criminal Procedure Code (Cap. 75) Laws of Kenya (CPC) when she failed to consider his mitigation. He also submitted that there were no aggravating circumstances in his case.
34. Section 329 CPC provides that:
“The court may, before passing sentence, receive such evidence as it thinks fit in order to inform itself as to the proper sentence to be passed.”
35. I have looked at the trial court record and the issue raised by the appellant bears no truth because there is an indication in the record that he was given an opportunity to mitigate and he said in mitigation, “I didn’t do it. I just went to get money from M-Pesa. I didn’t sleep with her. I ask for forgiveness.”
36. I find that the appellant was properly sentenced as per the provisions of section 8(3) of the Sexual Offences Act. He was given the minimum sentence hence cannot complain that the sentence was unconstitutional and that the trial court had the discretion to met out a lesser sentence.
37. The final issue raised by the appellant was that the trial court failed to direct that the time spent in custody prior to his conviction be taken into account in his sentence. That ground and the submissions in support are not correct. The learned trial magistrate expressly stated that the time already spent in remand be computed. The charge sheet shows that accused person was arrested on 24/3/2022. He was released on bond on 14/4/2022 after about three weeks in custody. He was then convicted on 30/6/2023 when the trial court directed that he be remanded until sentencing on 12/7/2023 a period of 12 days. That is the period to be taken into account in computing the period of his imprisonment.
38. However, the issue that I find requiring this court’s attention is that the particulars of the charge indicated the age of the complainant as 16 years and not 15 years as was established in evidence. While addressing this disparity, the learned trial magistrate relied on the case of Elphas Musundi above. However, that case is distinguishable from the present one in the sense that in that case, the inconsistence favoured the appellant such that he would be subject to a lesser sentence while in the present case, he would be subject to a harsher sentence. The learned Judge in that case expressed himself thus:
“In fact, as stated in the case of Hilary Nyongesa Vs Republic Eldoret Criminal Appeal (above) age is important when it comes to sentencing and in this case the error complained of favoured the Appellant in terms of the sentence imposed.”
39. To me, the prejudice occasioned to the appellant arose with regard to the sentence where the appellant always had in mind the age of 16 years as the age of the complainant. So, when it came to sentencing, his expectation was that the sentence would be for a girl aged 16 years old which is a minimum of 15 years imprisonment. Sentencing is at the discretion of the trial court and the sentence of 20 years imprisonment imposed was well within the law. However, considering the appellant’s grounds and submissions in the appeal that he could have been deceived by the complainant that she was of age, which of course I have found misplaced, all the same it leads to my finding that he always had the age of the complainant as 16 years in his mind as indicated in the charge sheet. In that case, I find that he should be given the benefit of the doubt and sentenced as though the complainant was 16 years old as set out in the particulars of the charge. No doubt, this is one of those instances where minimum sentences become problematic and may lead to a miscarriage of justice.
40. Accordingly, for the reasons set out above, I find that the appeal fails and is dismissed in its entirety, save that the appellant’s sentence is substituted with a sentence of 15 years’ imprisonment.
41. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered at Kwale on the Virtual Platform, Teams, this 24th day of February 2025 in the presence of:
The appellant in person from Kwale prison.
Ms Vallerie h/b for Mr. Ngiri for the respondent
The appellant in person from Kwale prison.
Johnson h/b for Etropia court assistant.
J U D G M E N T
1. The appellant was convicted on the principal charge of the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act (Cap. 63A) Laws of Kenya and sentenced to serve twenty (20) years imprisonment. The particulars of the charge were that on diverse dates between 15th March, 2022 and 24th March 2022 at Pangani village, Lungalunga location Lungalunga Sub-County within Kwale County unlawfully and intentionally caused his penis to penetrate the vagina of M.M.K a girl child aged 16 years.
2. In the alternative, the appellant was charged with committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act, the particulars of location and time being the same as for the principal charge, and that he unlawfully and intentionally caused his penis to touch the vagina of the same child.
3. The appellant was dissatisfied with the conviction and sentence, and has come to this court on appeal based on grounds as set out in his amended grounds of appeal undated but filed in court on 5/8/2024 as follows:
a. The preferred charge was not proved to meet the requirement of section 43 of the SoA on the mainstay of the charge being intentional and unlawful.
b. The learned trial magistrate failed to consider the import of section 8(5) of the SoA under which the case fell.
c. The appellant was subjected to double jeopardy for being tried and convicted of the offence when he had already been punished by the victim’s people at the time of arrest.
d. The learned trial magistrate failed to consider that the burden of proof lay with the prosecution.
e. The learned trial magistrate erred in law and in fact by failing to consider that the system of maximum and minimum sentence as provided for under the SoA was declared unconstitutional by the Supreme Court and thus failed to take into account his mitigation and to exercise her discretion in sentencing.
4. The appeal was canvassed through written submissions filed by the appellant and the respondent which I have duly considered.
5. This being a first appeal, this court is required to re-examine, re-evaluate and analyze 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 a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. R., [1957] E.A. 336) and to the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion (Shantital M. Ruwala v. R., [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’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact the trial court has had the advantage of hearing and seeing the witnesses, see Peters v. Sunday Post, [1958] E.A. 424.”
6. This position is recounted variously in other decisions for instance in Njoroge v Republic (1987) KLR 19.
7. Sections 8 of the Sexual Offences Act under which the offence of defilement and for which the appellant was convicted provides as follows:
1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
2) A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.
3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
4) A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.
5) It is a defence to a charge under this section if—
a) it is proved that such child, deceived the accused person into believing that he or she was over the age of eighteen years at the time of the alleged commission of the offence; and
b) the accused reasonably believed that the child was over the age of eighteen years.
6) The belief referred to in subsection (5)(b) is to be determined having regard to all the circumstances, including any steps the accused person took to ascertain the age of the complainant.
7) Where the person charged with an offence under this Act is below the age of eighteen years, the court may upon conviction, sentence the accused person in accordance with the provisions of the Borstal Institutions Act (Cap. 92) and Children's Act (Cap. 141).
8) The provisions of subsection (5) shall not apply if the accused person is related to such child within the prohibited degrees of blood or affinity.
8. I have set out the entire section because of the appellant’s first ground of appeal and submissions that the charge sheet was defective in so far as the evidence tendered by the prosecution did not prove, according to him, a crucial element of the offence, that is “unlawful and intentional” as stated in the particulars of the charge and secondly because the evidence adduced established that the complainant was 15 years and 9 months old and not 16 years as stated in the particulars of the charge.
9. From the above provisions of the law, the ingredients of the offence of defilement which the prosecution must prove beyond a reasonable doubt are that the complainant was a child, proof of penetration of the complainant’s genital organ by the accused person’s genital organ and positive identification of the accused person as the assailant. Support for the same is found in the case of Gachigi v Republic [2025] KECA 132 (KLR) the Court of Appeal held that:
“The offence of defilement is found in section 8(1) of the Sexual Offences Act. The elements of the offence are that the victim should be under the age of eighteen years, that there is penetration and that the offender should be clearly identified.”
10. The prosecution called four (4) witnesses to support its case. PW 1, M.M. was the complainant, PW 2 J.N.M. is the complainant’s paternal uncle and an eye witness, PW 3, Athman Rajab Ngala, is a clinical officer who examined the complainant and completed her P3 form and PW 4, Cpl Ezekiel Juma was the investigating officer in the case. On his part, the appellant tendered sworn evidence in defence and did not call additional witnesses.
11. The prosecution case was that the appellant, an uncle to the complainant as his brother is married to the complainant’s aunt, went to the complainant’s parents’ house where the complainant was sleeping alone on the night of 23/3/2022, asked her to open the door which she did upon recognizing him because he was well known to him, the appellant had been to that home earlier the same evening and they had engaged in sexual intercourse before on 15/3/2022. He was naked and carrying his clothes in the hands. The complainant had on a “lesso” (loin cloth) without panties. The appellant entered the house and told her he wanted to sleep with her. She told him he could not. He put his hand over her mouth and put his genital organ into her genital organ. He removed his hand from her mouth. The complainant was scared to talk.
12. PW 2, J.N.M who had got out of his house at the time, which is next to the house where the complainant was sleeping, to relieve himself heard murmurs from his brother’s house. He moved closer and peeping through the window he spotted the appellant and the complainant lying on the floor in an embrace. The appellant was naked while the complainant had on a “dera” loose fitting dress. PW 2 called out for the complainant to open the door. She hesitated but then did. The appellant came over to the door and made to flea while naked and covering his private parts with a child’s skirt. PW 2 stopped him, asking him why he wanted to leave and a scuffle ensued. They fell to the ground. In the process, other members of the family came over. The appellant was eventually subdued and escorted to Lunga Lunga police station where the incident was reported. The following day the complainant was taken for medical attention.
13. PW 3, Athman Rajab, the clinical officer gave evidence that the complainant was 16 years old. She informed him that she had sex with the appellant twice, first on 15/3/2022 at 2.00 p.m. and then on 23/3/2022 at 9 p.m. Examination of her genitalia showed that it was normal externally with no bruises nor lacerations but hymen was not intact. There were no significant findings in relation to the issue at hand. The appellant was also examined and no significant findings made in relation to the case at hand. PW 3 gave the appellant’s age as 18 years.
14. PW 4, CPl Ezekiel Juma conducted investigations on the matter and had the appellant charged with the offence. He produced the complainant’s certificate of birth as evidence, Exhibit 4. It showed the complainant was borne on 24/6/2006 making her 15 years and 9 months, shy of 16 years by 3 months.
15. In his defence, the appellant said that he said he went to PW 2’s home for an M-pesa transaction but he was framed for defilement and beaten up. He said that he does not know the complainant and he was not with her on the material night.
16. In this appeal, the appellant submitted that the charge sheet was defective because there was no evidence to prove the elements of the offence namely the act complained of being “unlawful and intentional” as captured in the particulars of the charge and defined under section 43 of the SoA.
17. The words “unlawful and intentional” are not part of the elements of the offence of defilement as laid out above and they need not be proved by the prosecution. Their inclusion in the particulars of the charge was simply surplusage, perhaps being erroneously imported from the offence of rape whose ingredients include those words. The prosecution did not therefore need to prove that the acts complained of were unlawful and intentional.
18. The appellant made extensive submissions that the charge sheet was defective in that respect and that the prosecution had not proved those elements. He followed it up with the submission that the complainant had behaved like an adult and therefore his case came within the provisions of section 8(5) of the SoA. That section, which provides that deception of an accused person by the complainant that she was over the age of eighteen years at the time of commission of the offence sets out a defence to a charge of defilement. However, in this case, the appellant never raised such a defence before the trial court. It is clearly an afterthought meant to aid him in this appeal. It is therefore without merit and those two grounds of appeal must fail.
19. The same fate befalls the third ground of appeal that he was already punished for the offence by the complainant’s relatives when they held a kangaroo court after finding out what he and the complainant had done. The appellant alleged that he will be punished twice for the same offence which will be against the principle of double jeopardy. Again, he never raised that issue before the trial court and so it is not for consideration by this court.
20. But to satisfy his curiosity, I will first lay out the provisions of the law with respect to double jeopardy under Article 50(2)(o) of the Constitution and Section 138 CPC
Article 50(2)(o):
Every accused person has the right to a fair trial, which includes the right not to be tried for an offence in respect of an act or omission for which the accused person has previously been either acquitted or convicted.
Section 138 CPC
A person who has been once tried by a court of competent jurisdiction for an offence and convicted or acquitted of that offence shall, while the conviction or acquittal has not been reversed or set aside, not be liable to be tried again on the same facts for the same offence.
21. As clearly discernible from section 138 expounds on the provisions of Article 150 of the Constitution in that in order for the principle of double jeopardy to apply, it must be shown that the accused person was tried by a court of competent jurisdiction and convicted or acquitted of that offence.for that principle to apply, as laid out in Article 50(2)(o) of the Constitution and Section 138 of the Criminal Procedure Code, (Cap. 75) Laws of Kenya, the appellant must show that he was tried for that offence or for any other criminal offence’ the proceedings which proceedings must be before a court or a judicial tribunal (see the case of Khan & 2 others v Capital Markets Authority (Appeal 2 of 2022) [2024] KECMT 376 (KLR) (2 February 2024) (Judgment) in which the case of Republic v Public Service Commission of Kenya Ex parte James Nene Gachoka, Nairobi Misc. Application 516 of 2005 [2013] is cited. The appellant submits that he was subjected to a kangaroo court. That is not a court or judicial tribunal contemplated under the law.
22. Turning back to the substance of the charge, the burden was on the prosecution to prove their allegations against the appellant beyond a reasonable doubt.
23. The age of the complainant was established through her certificate of birth to be 15 years and 9 months thus making her a child as provided for under section 8(1) of the SoA. There is no dispute over her age. The learned trial magistrate noted the inconsistence of the age indicated in the particulars of the charge as 16 years and the one proved by way of the certificate of birth as 15 years and 9 months. She then found correctly that the statement of the offence was correctly framed under section 8(3) but the particulars of the charge indicated the wrong age. The prosecution did not correct that inconsistence. The learned trial magistrate relying on the case of Elphas Musundi v Republic [2019] KEHC 12183 (KLR) found that there was no prejudice occasioned to the appellant from that inconsistence. The offence of defilement is provided for under section 8(1) of the SoA while subsections (2), (3) and (4) prescribe the minimum sentences for offenders committing the offences with minors of different age brackets. I agree that there is no prejudice occasioned by the inconsistence with respect to proof that the complainant was a minor under section 8(1).
24. Otherwise, the appellant seeking to rely on section 8(5) of the SoA in his submissions means that he appreciated that the complainant was a child because it is only then that the provisions of section 8(5) SoA would come into play. I agree with the learned trial magistrate that the age of the complainant as a child was proved beyond a reasonable doubt to be that of a child as provided under section 8(1) of the SoA.
25. I also agree with the learned trial magistrate that the issue of whether or not there was prejudice with regard to the sentence meted out has to be considered at the point of considering the sentence.
26. On penetration, although in his defence the appellant denied that he committed the offence, his grounds of appeal and submissions indicate that he had conceded that he had sexual intercourse with the complainant only that the complainant deceived him and made him to believe that she was over the age of eighteen years. I have said above that the appellant has brought that issue up on appeal as an afterthought.
27. The complainant said that the appellant had placed his genital organ in hers, thereby penetrating it. The evidence by PW 2 that he found the appellant naked with the complainant and both of them lying on the ground corroborates the complainant’s evidence that he engaged in sexual intercourse with her. I am therefore satisfied that penetration was proved beyond a reasonable doubt.
28. Lastly is the issue of proof of the identity of the culprit. From the evidence on record, PW 1 testified that the appellant was the culprit, and the evidence of PW 2 finding him while naked lying on the floor with the complainant in an embrace is corroboration of the complainant’s evidence that he was the culprit. I find that the prosecution did prove beyond a reasonable doubt that the appellant was the culprit.
29. The appellant submits that the learned trial magistrate approached and determined the issue of sentence on the false law of minimum sentences as prescribed in the Sexual Offences Act without considering that it was declared unconstitutional by the Supreme Court and therefore outdated. He cited several cases to support his submission.
30. It is true as submitted by the appellant that on the strength of the reasoning and decision in the case of Francis Karioko Muruatetu and Another vs Republic [2017] eKLR, the High Court and even the Court of Appeal routinely reviewed minimum sentences imposed on convicts for different offences other than murder, including for sexual offences, such as the ones cited by the appellant herein, and robbery with violence. However, by the clarification made by the same Supreme Court in its subsequent directions given in Muruatetu & Another v Republic; Katiba Institute & 4 others (Amicus Curiae) (Petition 15 & 16 of 2015) [2021] KESC 31 (KLR) (6 July 2021) (Directions), the Supreme Court made it clear that the principles in Muruatetu on sentencing only applied to murder cases, and not to any other type of case, not even sexual offences. The Supreme Court stated thus:
“It has been argued in justifying this state of affairs, that, by paragraph 48 of the Judgment in this matter, or indeed the spirit of the Judgment as a whole, the court has outlawed all mandatory and minimum sentence provisions; and that although Muruatetu specifically dealt with the mandatory death sentence in respect of murder, the decision's expansive reasoning can be applied to other offenses that prescribe mandatory or minimum sentences. Far from it …
We therefore reiterate that this court’s decision in Muruatetu, did not invalidate mandatory sentences or minimum sentences in the Penal Code, the Sexual Offences Act or any other statute…
It should be apparent from the foregoing that Muruatetu cannot be the authority for stating that all provisions of the law prescribing mandatory or minimum sentences are inconsistent with the Constitution.”
31. The Supreme Court has subsequently in its decision in a case of a sexual offence Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) delivered on 12/7/2024 affirmed that position that Muruatetu is not applicable in cases under the Sexual Offences Act.
32. This court is bound by the decision of the Supreme Court and applying the decisions cited herein, I find that the grounds and submissions by the appellant that the learned trial magistrate erred by approaching the issue of sentencing in a wrong way is without merit and the same is rejected.
33. The appellant also states that the trial court failed to abide by the provisions of section 329 of the Criminal Procedure Code (Cap. 75) Laws of Kenya (CPC) when she failed to consider his mitigation. He also submitted that there were no aggravating circumstances in his case.
34. Section 329 CPC provides that:
“The court may, before passing sentence, receive such evidence as it thinks fit in order to inform itself as to the proper sentence to be passed.”
35. I have looked at the trial court record and the issue raised by the appellant bears no truth because there is an indication in the record that he was given an opportunity to mitigate and he said in mitigation, “I didn’t do it. I just went to get money from M-Pesa. I didn’t sleep with her. I ask for forgiveness.”
36. I find that the appellant was properly sentenced as per the provisions of section 8(3) of the Sexual Offences Act. He was given the minimum sentence hence cannot complain that the sentence was unconstitutional and that the trial court had the discretion to met out a lesser sentence.
37. The final issue raised by the appellant was that the trial court failed to direct that the time spent in custody prior to his conviction be taken into account in his sentence. That ground and the submissions in support are not correct. The learned trial magistrate expressly stated that the time already spent in remand be computed. The charge sheet shows that accused person was arrested on 24/3/2022. He was released on bond on 14/4/2022 after about three weeks in custody. He was then convicted on 30/6/2023 when the trial court directed that he be remanded until sentencing on 12/7/2023 a period of 12 days. That is the period to be taken into account in computing the period of his imprisonment.
38. However, the issue that I find requiring this court’s attention is that the particulars of the charge indicated the age of the complainant as 16 years and not 15 years as was established in evidence. While addressing this disparity, the learned trial magistrate relied on the case of Elphas Musundi above. However, that case is distinguishable from the present one in the sense that in that case, the inconsistence favoured the appellant such that he would be subject to a lesser sentence while in the present case, he would be subject to a harsher sentence. The learned Judge in that case expressed himself thus:
“In fact, as stated in the case of Hilary Nyongesa Vs Republic Eldoret Criminal Appeal (above) age is important when it comes to sentencing and in this case the error complained of favoured the Appellant in terms of the sentence imposed.”
39. To me, the prejudice occasioned to the appellant arose with regard to the sentence where the appellant always had in mind the age of 16 years as the age of the complainant. So, when it came to sentencing, his expectation was that the sentence would be for a girl aged 16 years old which is a minimum of 15 years imprisonment. Sentencing is at the discretion of the trial court and the sentence of 20 years imprisonment imposed was well within the law. However, considering the appellant’s grounds and submissions in the appeal that he could have been deceived by the complainant that she was of age, which of course I have found misplaced, all the same it leads to my finding that he always had the age of the complainant as 16 years in his mind as indicated in the charge sheet. In that case, I find that he should be given the benefit of the doubt and sentenced as though the complainant was 16 years old as set out in the particulars of the charge. No doubt, this is one of those instances where minimum sentences become problematic and may lead to a miscarriage of justice.
40. Accordingly, for the reasons set out above, I find that the appeal fails and is dismissed in its entirety, save that the appellant’s sentence is substituted with a sentence of 15 years’ imprisonment.
41. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered at Kwale on the Virtual Platform, Teams, this 24th day of February 2025 in the presence of:
The appellant in person from Kwale prison.
Ms Vallerie h/b for Mr. Ngiri for the respondent
The appellant in person from Kwale prison.
Johnson h/b for Etropia court assistant.