The Appellant herein Samuel Esonga Mulwale was charged with the offense of Defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act No. 3 of 2006. He also faced an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006.
Particulars of the offense are that on the 4th of January 2023 at around 1330hrs at Sare area Awendo Township in Migori County within the Republic of Kenya the Appellant willfully and intentionally caused his penis to penetrate the vagina of S.N.O a child aged 6 years.
He was acquitted for the offense of defilement and convicted of the alternative count of indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006. Consequently, he was sentenced to 10years imprisonment for the same.
The Appellant was dissatisfied by the conviction and sentence and lodged his Petition for appeal which wasn’t filed or dated but captured in his written submissions which was filed but undated as well based on the following grounds:
1. That the complainant narrated that the incident happened on a Friday and as per the calendar the alleged Friday was on 06/01/2023 and going by the evidence adduced to the trial court by PW2 (The complainant’s father) indicated that he witnessed the incident on 04/01/2023. Thus the Appellant believes that they were on a mission to fix him to cover the crime which was committed by another Minor who they did not want to arraign in a court of law for fairness of administration of Justice considering that he had infected the girl child.
2. That considering the Main count could not stand it was fair for the trial court to acquit him for fairness. That he couldn’t have engaged in such a kind of vice after staying in the plot for only a day. And that it was a calculated move by the mother of the complainant to fix him as stated in his defense. She did not even attempt to record her statement with the police and subsequently testify in court because she heard the Appellant could expose her intentions which were bad.
Reasons wherefore the Appellant prayed that the conviction and sentence be put aside, or the sentenced be reduced, and any other order be given as the court deems fit to grant.
Prosecution’s case was thatPW1, S. N the Complainant who gave an unsworn statement after the court conducted a voir dire stated that she did not know the name of the Appellant but she knew him. It was her evidence that she was at home with her elder brother when the Appellant approached them and informed them that he was looking for a rental house. They directed him to a house they had vacated from. That she returned home and found the Appellant at the house and advised him to go to the landlord whom he met and paid the house rent. It was her further evidence that on the day of the incident, her brother had denied her sugarcane and she was directed by the other children that there was a “tinga tinga” with sugarcane. She picked the sugarcane and the Appellant saw and summoned her and she followed him to his house.
PW1 further testified that the Appellant made his bed and asked her to sleep with him which she refused. The Appellant then removed her trouser and started touching her on her waist. Her father then went into the house and found her with her trousers on the knees. The Appellant then lied to her father that he wanted her to fetch firewood. It was her evidence that the Appellant had not removed his clothes. Her father called her mother and she could not remember the name of the person who called the police. PW1 later stated that the Appellant removed her skirt and not trouser, and that she had stockings on which the Appellant removed and she had no other clothes. The Appellant also removed his trouser and remained naked. She confirmed that she was later taken to the police station, then hospital.
In cross examination, she testified that when her father walked into the Appellant’s house the door was not locked. When her father knocked the Appellant hid her at the corner of his house and pulled up his trousers. She confirmed that she had not been sent by her mother to his house and that the Appellant called her from the tractor and she did not willfully follow him to his house.
PW2, Peter Okello Ochieng testified that he was PW1’s father. That on 4th January 2023 he left his home at around 1:00 Pm to visit the Appellant. He called out the Appellant’s name and found him in the house. That he found the Appellant making his mattress and he was on his knees. That his trousers were on his knees and he pulled them up. It was his evidence that on entering the house he did not see PW1. He later saw PW1 at the corner of the house on a plastic chair and her trousers were on her knees and she had her blouse on. The Appellant then informed him that PW1 had been sent to get some firewood from him by her mother. PW1 then informed him that he had touched her indecently and wanted to defile her.
In cross examination he stated that the Appellant defiled his daughter and he found them both naked. That the doctors did not establish penetration and PW1 was walking and her clothes had no blood stains and she had not been sent by her mother.
PW3, David Opiyo Nyarongo, gave sworn evidence and testified that he was a village elder and a pastor. The accused person was his neighbor. It was 2:00Pm when he received a call from PW1’s mother. He went to the scene and found people in the Appellant’s home. He found Esonga seated in his home and PW1 was seated on a plastic chair. PW1 narrated the events to him and he called the landlord and the police.
In cross examination he testified that he could not establish whether the Appellant had defiled the child.
PW4, Joseph Otieno Owira gave sworn evidence and testified that he was a clinical officer. On 4th January 2023 he examined PW1. Her hymen was perforated and he made an impression of defilement. The minor had an infection and was given antibiotics. Her PRC Form, P3 Form stated that she had been defiled. He also examined the Appellant and established that he had a urinary tract infection. He was placed on medication.
In cross examination he stated that the minor did not have any blood on the genitalia but it was penetrated. The minor stated that she had been defiled by another minor. That the Appellant could have made partial penetration.
PW5, PC Christine Olando, No. 240392, gave sworn evidence and testified that she was the investigating officer. On 4th January 2023 her colleagues received a distress call and when they arrived at the scene, they found people in the Appellant’s home who wanted to lynch him. The Appellant was rescued and taken to the police station. PW1 informed her that she had been defiled by the Appellant. He called her when she had gone to pick sugarcane and took her to his house. PW2 found him in the act. The Appellant was arrested and charged before court.
In cross examination she stated that she was not present when the ordeal happened.
Based on the foregoing, the trial court found that the prosecution had established a prima facie case against the Appellant after hearing the prosecution witnesses. The Appellant was then put on his defense and explained to section 211 of the Criminal Procedure Code and he chose to give a sworn statement. He did not have any witnesses to call.
The Appellant Samuel Esonga Mulale in his defense gave sworn evidence and said that before the incident he was residing in Awendo town and was a sugarcane cutter. He said he met the mother of PW1 in April 2021 and became lovers upon the request of PW1’s mother. They stayed in a romantic relationship from May 2021 to December 2021 when he left to Kibos because Sony sugar was not doing well. In December 2022, he returned to Awendo when Sony Sugar had been revived and was living with his friend Ken who asked him to get a rental house. That he met with Mama Moraa and she directed him to the vacant house. On 3rd January 2023 he met with the landlord and paid for the house. She visited him and he informed her that he could not continue with the relationship. On 4th January 2023, she sent her daughter to fetch some clothes they had left in the house he was now renting and equally requested for Kshs. 200. The husband went into his house and found PW1 and he informed him that she had gone to fetch firewood. He called his wife and she screamed and shouted that he had raped her daughter. She also told the minor in Kisii that she should state he had raped her. He was then arrested and charged in court.
In cross examination, he stated that he went to the home of PW2 who showed him the vacant house. He did not remove the clothes of PW1. He did not tell PW2 he had a relationship with his wife as he feared he would break his home. That the mother removed the minor’s clothes while they were in the house and told her to state that she was raped. He did not defile PW1.
Analysis and Determination
This being the first appellate court, my duty is well spelt out namely; to re-evaluate the evidence tendered before the trial court and subject it to a fresh analysis so as to reach an independent conclusion as to whether or not to uphold the decision of the trial court. In the often cited case of Okeno v Republic [1972] EA 32, the East Africa Court of Appeal stated on the duty of the court on first appeal 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.”
Likewise, in the case of Mark Oiruri Mose vs R (2013) eKLR, it was reiterated that:
“… the first appellate court has the duty to revisit the evidence tendered before the trial court, afresh analyze it, evaluate 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 to give allowance for that.”
Having considered the grounds of Appeal, and reviewed/revisited the evidence tendered before the trial court afresh as well as the submissions by the rival parties, the issues for determination are: -
1. Whether the prosecution proved that the Appellant committed the offence of indecent act with the Complainant.
2. Whether the Trial court properly convicted the Appellant for the offence in the alternative count and consequently sentencing him to 10 years’ imprisonment?
Section 11(1) of the Sexual Offence Act No. 3 of 2006 provides that:
(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
In the Sexual Offences Act, “an indecent act” is defined as an unlawful intentional act which causes-
(a)Any contact between any part of the body of a person with the genital organs, breasts or buttocks of another, but does not include an act that causes penetration.
(b)Exposure or display of any pornographic material to any person against his or her will.
In the case of Dwalo v Republic (Criminal Appeal E027 of 2023) [2024] KEHC 2219 (KLR) (5 March 2024) Kiarie Waweru J outlined the main ingredients of the offence of committing an indecent act with a child as: -
(a) The victim is a child, as prescribed in law;
(b) Intentional contact by the accused with the genital organ, breast or buttocks of the child victim. The act must not be an act that caused penetration; or
(c) exposure or display of any pornographic material to a child; and
(d) Absence of any lawful justification for the act(s) complained of.
The Complainant’s father PW2, Peter Okello Ochieng testified that When he visited the Appellant he found him in the house making his mattress and he was on his knees. That he noticed the Appellant’s trousers were on his knees and he pulled them up. It was his evidence that on entering the house he did not see PW1 but later saw her at the corner of the house on a plastic chair and her trousers were on her knees and she had her blouse on. That the Appellant then informed him that PW1 had been sent to get some firewood from him by her mother but PW1 informed him that the Appellant had touched her indecently and wanted to defile her. PW2 stated that the Appellant defiled his daughter and he found them both naked.
PW1 testified that when the Appellant took her to his house he made his bed and asked her to sleep with him on it and she refused. The Appellant then removed her trouser and started touching her on her waist and the Appellant also removed his trouser and remained naked. She confirmed that she was later taken to the police station, then hospital.
In cross examination, she testified that when her father walked into the Appellant’s house the door was not locked. When her father knocked the Appellant hid her at the corner of his house and pulled up his trousers. She confirmed that she had not been sent by her mother to his house and that the Appellant called her from the tractor and she did not willfully follow him to his house.
PW3 the Village Elder, Pastor and a neighbor to both the Appellant and PW2 was called to the scene and he found many people at the Appellant’s house and upon being told what transpired he called the Landlord and the police.
PW5 P,C. Christine Olando in company of colleagues responded to the distress call where the Appellant was alleged to have been found in the act and members of public wanted to lynch him.
From the above evidence it is clear that PW2 found the Appellant with the Complainant in his house and both were half naked and when he entered the house the Appellant pulled up his trousers and lied that the Complainant’s mother had sent her to fetch firewood. The Appellant had just occupied the rental house in the neighbor-hood and he did not explain what business he had accommodating a minor who was half naked in his house with the door closed.
The Appellant claimed that he was being framed by the Complainant’s mother because he severed their romantic relationship but the Complainant’s mother is not the one who found him with the minor and he did not raise the issue with the Prosecution witnesses and when cross examined on the said allegation he did not even know the name of the Complainant’s mother. The Appellant’s allegations are therefore an afterthought and cannot be taken into account to vitiate the finding that he committed the offence herein.
This court therefore finds that the Appeal lacks merit and the same is dismissed.
Right of Appeal within 14 days.
Dated signed and delivered at Migori this 15th Day of May, 2025.