The Appellant Samwel Omari Mbaka and Joseph Samson Nyariki were each charged with the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offence Act No 3 of 2006 in counts 1 and 2 respectively.
The particulars to the offence in count 1 were that Joseph Samson Nyariki on diverse dates between 5th and 6th January 2023 at Magenche in Kenyenya Sub- County within Kisii County intentionally caused his penis to penetrate the vagina of S.K.A a child aged 13 years.
The particulars to the 2nd count were that Samwel Omari Mbaka on diverse dates between 5th and 6th of January 2023 at Magenche in Kenyenya Sub- County within Kisii County intentionally caused his penis to penetrate the vagina of S.K.A a child aged 13 years.
In the alternative the accused persons were charged with the offence of indecent act contrary to Section 11(1) of the Sexual Offences Act No 3 of 2006.
A1 was discharged under Section 87(a) of the Criminal Procedure Code on account of his age and the Appellant herein found guilty, convicted and sentenced to serve 10 years imprisonment.
The Appellant was aggrieved by the conviction and sentence and he preferred the Petition of Appeal dated 4thFebruary 2024 on the following grounds :-
1. That the learned trial magistrate erred in both law and fact by finding that the prosecution had proved its case beyond reasonable court.
2.That the learned trial magistrate erred in both aw and fact by passing judgment out of mere fabricated evidence having no credible proof from the prosecution by relying on shoddy investigations.
3. That the learned trial magistrate equally faulted in both law and facts without withstanding that the medical evidence did not link the Appellant (2nd Accused) with the offence alleged as the infections that tested positive in the victim were only confirmed against the 1st Accused
4. That the learned trial magistrate faulted in both law and facts by convicting the Appellant when the Age of the victim’s age of pregnancy was never revealed and neither the DNA TEST was carried out on the pregnancy as the victim said she did not know who the farther of the baby she was carrying was.
5.That the learned trial magistrate equally faulted in both law and facts by believing the evidence of PW1 who colluded with the minor and teh1st Accused who was the boyfriend to the girl to frame up the Appellant to satisfy his hatred and grudge with the Appellant.
6. That the learned trial magistrate equally faulted in both law and facts by dismissing the Appellant’s defence that he was hated and that’s why he was farmed.
7.That the learned trial magistrate equally faulted in both lwa and facts leading his own versions of evidence in his judgment which are not the evidence on record i.e. “The victim was aged 13 instead of 15, that the victim was found in the house of the 2nd Accused while it is on record she had gone to report the matter to her uncle even before the arrest was made, the second accused remained with the victim’s sweater instead of the 1st Accused.
8.That the learned trial magistrate equally faulted in both law And facts by believing it was the 2nd Accused who defiled the victim while it is record how the first accused had repeated sex with the victim as a boyfriend who was helped and discharged from the proceedings to shift the burden of case against the Appellant.
9. That learned trial magistrate equally faulted in both law and facts by convicting the Appellant after admitting evidence from witnesses without establishing why the victim’s parent was never called to testify to confirm if it is true their daughter had gone missing and if so, if they had reported to any authority if their daughter had gone missing.
10. That the learned trial magistrate equally faulted in both law and facts by convicting the Appellant by believing the frame up of the Appellant by PW1 who took advantage of the girl’s boyfriend relationship, took the lead in the case without even involving the victim’s parents.
11. That the learned trial magistrate equally faulted in both law and facts by convicting the Appellant purely because the Appellant failed to report the girl to any authorities when the parents had not reported that their daughter was missing.
The Appellant prayed that the appeal be allowed and sentence set aside.
By a Notice dated 18th November 2024 the Respondent sought for enhancement of the sentence entered against the Appellant as per the provisions of Section 8(3) of the Act.
The Prosecution’s case was that the Complainant had gone to visit her boyfriend the 1st Accused in the trial court and that the said boyfriend left her at the 2nd Accused person’s house to wait for him. That when the 1st Accused did not return she slept with A2 on the same bed and he lay on her after removing her clothes and raping her. She said she wanted to sleep on the chair at A2’s house but he told her to sleep with him on the bed and he removed her clothes by force. The Complainant said she cried and did not sleep. She said she stayed at A2’s place for 2 days. The Complainant said when she learnt they were searching for her she went to her cousin’s place. She said A2 told her to sneak so nobody sees her. That she went and reported to her uncle and her mother went with her to the police and to hospital. PW2 identified PRC and P3 forms filled upon being examined for the offence of defilement as well as Treatment Notes.
PW1 the uncle to the Complainant testified that he learnt that the Complainant was missing and he mobilized a search and when the Complainant appeared and went to him she told him that she had been locked in A2’s house for 3 days and was sleeping with the said A2. Police were shown the house of A2 and he was arrested.
PW3 the Clinical Officer at Magenche Health Centre examined the Complainant on allegations of having been defiled by the 2nd Accused. PW3 said the Complainant’s hymen was broken and she had whitish discharge. That she also tested positive for pregnancy and was also found to have STI. He said that the torn hymen was not fresh. PW3 produced Treatment Notes-Ex P4, P3 and PRC forms Ex P 1 and 2 respectively.
PW4 P.C Henry Cheruto testified that he investigated the offence herein after PW1 reported tohave found the Complainant at the house of the Appellant herein. He said police were dispatched to the said house and the Appellant was found together with the Complainant and Joseph. He said that the Complainant was examined and found to have been defiled. Pw4 produced Certificate of Birth for the Complainant showing she was born on6/5/2007.
When the Appellant was placed on defense he gave sworn statement and said that he did not commit the offence. He said that he gave the Complainant a place to sleep as it had rained a lot and that she was framed because of hatred.
The court took directions that the appeal be canvassed by way of written submissions. However, the Appellant’s submissions are not in the file or in the CTS. The Respondent filed incomplete submissions in the CTS. This court will therefore proceed and determine the appeal based on the evidence in the Trial Court, the grounds of appeal and the judgment of the Trial Magistrate.
ANALYSIS AND DETERMINATION.
In a first appeal, the duty of the court was held in Mark Oiruri Mose vs. R (2013) eKLR thus;
“…. the Court is duty bound to revisit the evidence tendered before the trial court afresh, evaluate it, analyze it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence and give allowance
for that.”
Having considered the grounds of Appeal, and revisited the evidence tendered before the trial court afresh as well as the submissions by the rival parties, the issues for determination are whether the ingredients of the offence of defilement were proved beyond reasonable doubt.
Section 8 (1) as read with 8(3) of the Sexual Offences Act provides:
“(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement…….
….. (4) 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.”
The key ingredients of the offence of defilement are age of the victim, proof of penetration and identification of the assailant.
From the evidence of PW2 she said she was 15 years by the time she was testifying and she produced Certificate of Birth EX P1 which showed she was born on 05/05/2007. Considering the date of the incident between 5th and 6th of January 2023 the Complainant was 16 years old by the time the offence was committed and the Appellant ought to have been charged with the offence under Section 8(4) of the Sexual Offences Act No 3 of 2006.
In the Court of Appeal case of Edwin Nyambogo Onsongo Vs Republic [2016] eKLR it was stated as follows on proof of age.
“... the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof.” ....” we think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.”
PW3 Frank Barongo the Clinical Officer who examined and treated the Complainant testified and gave the Complainant’s apparent age as 13 years in P3 EX P 3. The Appellant did not dispute the Complainants age and the same was therefore proved beyond all reasonable doubt.
On the issue of penetration, the Complainant said that her boyfriend Joseph Samson Nyariki who was initially charged jointly with the Appellant herein left her in the Appellant’s house. That she waited for Joseph up to night and when he did not return she slept. That the Appellant slept with her on his bed and defiled her after removing her clothes against her wish. When the Complainant was examined by PW3 it was found that her hymen was broken but it was not freshly torn and she also had whitish discharge and was pregnant. The Appellant denied having defiled the Complainant but admitted that she spent the night in his house on the material night. The detailed account given by the Complainant on how the Appellant defiled her makes this court confirm the trial courts finding that there was proof of penetration beyond all reasonable doubt.
On the issue as to whether the perpetrator was positively identified the Complainant said she was with the Appellant in the same house overnight and she slept with him on the same bed where he defiled her. She said and her uncle PW1 confirmed that the Appellant was known by the nick name Tegemea. The Appellant confirmed that the Complainant spent the night in his house and he was with her alone throughout the night. Nothing in the evidence on record showed that any of the Prosecution witnesses had hatred for the Appellant that would make them frame him. This court finds that there was no mistake in the identity of the Appellant and he indeed defiled the Complainant under the safety of his house in the guise of giving her shelter when it rained a lot. PW2 said that the Appellant even advised her to sneak out of his house so she is not seen because he wanted to take advantage of the fact that the Complainant had had sexual intercourse thr previous day with Joseph Nyariki.
The Respondent issued a notice of enhancement of the sentence under Section 8(3) of the Sexual Offences Act but in consideration of the Complainants age as shown in the Certificate of Birth this court finds that exercise of the Trial Magistrates appeal lacks merit and the same is dismissed.
Right of Appeal 14 Days Explained.
Dated, signed and delivered this 6th day of March, 2025