Skip to content
JudgmentSAWA MCHANE MWINYIMKUU VS The Republic11 min read

SAWA MCHANE MWINYIMKUU VS The Republic

High Court at Mombasa High Court · · Wendy Micheni


(From Original Conviction and Sentence of Hon. Rita Amwayi in the Resident Magistrate’s Court at Mombasa, in Criminal Case No. SOE 18 of 2020 on 11th May, 2020)


Introduction

  1. The Appellant was charged before the Court with the offence of:-

COUNT I: Defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No. 3 of 2006. Particulars of the same being that between 29th day of June 2020 to 9th day of October 2020 at Jamvi la Wageni area in Likoni Sub County within Mombasa County unlawfully and intentionally caused his penis to penetrate the anus of E.M.M a child aged 9 years.

ALTERNATIVE COUNT: Committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act no. 3 of 2006. on diverse dates between the 29th day of June 2020 to 9th day of October 2020 at Jamvi la Wageni area in Likoni Sub County within Mombasa County, intentionally touched the anus of E.M.M a child aged 9 years with his penis.

COUNT II: Defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No. 3 of 2006. Particulars of the same being that between 29th day of June 2020 to 9th day of October 2020 at Jamvi la Wageni area in Likoni Sub County within Mombasa County unlawfully and intentionally caused his penis to penetrate the anus of B.J.K. a child aged 5 years.

ALTERNATIVE COUNT: Committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act no. 3 of 2006. on diverse dates between the 29th day of June 2020 to 9th day of October 2020 at Jamvi la Wageni area in Likoni Sub County within Mombasa County, intentionally touched the anus of B.J.K. a child aged 5 years with his penis.

  1. The Appellant was charged, he denied the charges and the trial court put down the case for hearing. The prosecution called six (6) witnesses and at the close of the Respondent’s case, the trial court found the Appellant with a case to answer; put him to his defence, convicted and sentenced ten (10) years imprisonment on each count.
  2. Being dissatisfied with the said judgment the appellant lodged the present appeal relying on the following grounds:
  3. THAT the Learned Honourable Magistrate erred both in law and fact in that she convicted the Appellant on insufficient evidence which did not meet the threshold of proof beyond any reasonable doubt.
  4. THAT the learned Magistrate erred in law and in fact by convicting the Appellant on insufficient and untenable evidence
  5. THAT the learned Magistrate erred in law and in fact in relying on evidence that was not before the court.
  6. THAT the learned trial Magistrate erred both in law and in fact in convicting the Appellant when the evidence on record was manifestly insufficient, inconsistent and had glaring gaps incapable of sustaining a conviction.
  7. THAT the learned trial Magistrate erred in law and in fact in convicting the Appellant against the weight of the evidence on record.
  8. THAT the learned Honourable Magistrate erred in law and fact in failing to give due and adequate consideration to the Appellant’s evidence in defence.
  9. THAT the Learned Honourable Magistrate erred both in law and fact in that she did not properly consider the evidence given by both the Prosecution and the Appellant respectively.
  10. THAT the Learned Honourable Magistrate erred in law and fact in that she did not at all take into account the evidence and submissions made by the Appellant.
  11. THAT the Learned Honourable Magistrate did not consider the contradictory evidence given by the prosecution witnesses.
  12. For the reasons advanced in his Petition of Appeal, the Appellant prayed the appeal be allowed and conviction and sentence be quashed and the Appellant be set free.

Analysis and Determination

  1. It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion but bearing in mind that it neither saw nor heard the witnesses testify. This is a first appeal and this court has a duty to analyze and evaluate the evidence which was adduced before the trial court and come up with its own independent finding. The appellant has a legitimate expectation that the evidence will be subjected to an exhaustive evaluation by the appellate court and the appellate court’s own independent finding. This principle has been considered in various decisions of this court and those of the Court of Appeal.
  2. The leading authority on the subject is Okeno - Versus - Republic ( 1972) EA 32. In this case the court stated-;

“The duty of the 1st appellate court is to analyze, reevaluate the evidence which was before the trial court and itself come up with its own conclusion on the evidence. However, it must warn itself that it did not have the benefit of seeing the witnesses when they testified and must leave room for that. The Court of Appeal in the case of David Njuguna Wairimu Versus Republic (2010) while citing with approval the case of Okeno Versus Republic Supra, stated as follows:-

The duty of the first appellate court is to analyze, re-evaluate the evidence which was before the trial court and itself come up with its own conclusion on that evidence without overlooking the conclusion of the trial court. There are instances where the first appellant court may depending on the fact and the circumstances of the case, come to the same conclusion as those of the lower court. It may reverse those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decision.”

The court of appeal further stated that – “ an appellant on a 1st appeal is entitled to expect the evidence as whole to be subjected to a fresh exhaustive examination (Padya Versus Republic 1975 EA 336) and that the appellate court’s own decision on the evidence. the appellate court must itself weigh the conflicting evidence and draw its own conclusions.

In doing so it must make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peter’s Versus Sunday Post 1978 E.A 424”.

  1. In the  case of Gabriel Kamau Njoroge – Versus -  Republic, Criminal Appeal No.149 of 1986 [1987] eKLR Court of Appeal in Nairobi, Platt & Apaloo, JA.A. and Masime Ag. J.A reiterated the duty of a first appellate court as follows:-

“As this court has constantly explained, it is the duty of the first appellate court to remember that the parties to the court are entitled, as well on the questions of fact as on questions of law, to demand a decision of the court.”

  1. I have considered the grounds of appeal, evidence adduced in the lower court and the respective parties’ submissions. I find the following broad issues for determination: -
  2. Whether or not the Prosecution proved its case beyond reasonable doubt;
  3. Whether the Honourable Trial Court considered the Appellant’s defence in its final determination.

Elements of offence of defilement

  1. The Appellant was charged with two counts of the offence of defilement contrary to Section 8 (1) as read with Section 8 (2) of the Sexual Offences Act which provides:-

“8(1) a person who commits an act which causes penetration with a child is guilty of an offence termed defilement.

8(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.”

  1. The specific elements of the offence defilement arising from Section 8 (1) of the Sexual Offences Act which the prosecution must prove beyond reasonable doubt are:
  2. Age of the complainant;
  3. Proof of penetration in accordance with section 2(1) of the Sexual Offences Act; and
  4. Positive identification of the assailant
  5. On these elements; “The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.”(“Charles Wamukoya Karani – Versus - Republic, Criminal Appeal No. 72 of 2013”).
  6. What does the evidence portend? In a charge of defilement, the age of the victim is important for two reasons:-
  7. defilement is a sexual offence against a child; and
  8. age of the child has been used as an aggravating factor for purposes of determining the sentence to be imposed; the younger the child the more severe the sentence
  9. A child is defined as a person under the age of eighteen years. Is the victim herein a child? In the case of “Hillary Nyongesa – Versus - Republic (Eldoret) Criminal Appeal No. 123 of 2009” Mwilu, J. stated thus:

“Age is such a critical aspect in Sexual Offences that it has to be proved conclusively.  Anything else is not good at all.  It will not suffice.  And it becomes more important because punishment (sentence) under the Sexual Offences Act is determined by the age of the victim.”

  1. The Appellant was convicted and sentenced on the offence of defiling children aged 9 and 5 years old respectively. PW 1 testified that he was 9 years old; PW 2 testified that he was 5 years old. This evidence was corroborated by PW 4 and PW 3 respectively who also produced the victims’ birth certificates as evidence which were produced as Pex 6 and Pex 2 respectively.
  2. On this question of age, I am content to cite the case of “Fappyton Mutuku Ngui – Versus -  Republic [2012] eKLR” where it was held:

... That “conclusive” proof of age in cases under Sexual Offences Act does not necessarily mean certificate. Such formal documents might be necessary in borderline cases, but other modes of proof of age are available and can be used in other cases.

  1. On the basis of the evidence adduced, I find that the age of the victims were proved to be 9 and 5 years respectively.

Penetration

  1. Section 2(1) of the Sexual Offences Act defines penetration as:

“The partial or complete insertion of the genital organs of a person into the genital organ of another person.”

  1. PW 5 produced the PRC form, P3 form and treatment notes as Pex 3, 4, 5, 7 and 8. According to PW 5 on examination of E.M, he was in a fair general condition and the sphincter muscles to the anus were loose with lacerations and abrasions. He stated that he associated the loose sphincter muscles with repeated penetration. He filled the post rape care form and p3 form which he produced as exhibits in this case as Pex 3, 4 and 5. PW 5 also examined the 2nd Complainant and noted that there were fresh lacerations at 6.00oclock of the anus with loose sphincter muscles. He concluded that the injuries were caused by long standing penetration on the anus. He classified the degree of injury as harm and produced the treatment notes, P3 form and Post Rape Care form as exhibits in this case as Pex 7 and 8.
  2. The testimonies of the Complainants were fully corroborated by the evidence of the medical officer PW 5. The above as witness testimonies prove the fact that there was penetration of the children. But by whom? This is the mega question.

Was the appellant the perpetrator?

  1. The Appellant was well known to PW 1 and PW 2. The trial court noted that the complainants testified that the Appellant was their neighbor and their tuition teacher. The Accused person in his defence testified that the Complainants were his students. According to PW 3, the 2nd Complainant’s mother; she was in the shop with the complainants when she overhead the 1st Complainant telling her son that he had found him engaging in sexual acts with the Appellant. She then called them and they denied it at first but upon further interrogation they told her that the Appellant would tell them to remain behind after the tuition classes; then he would switch off the lights and tell the child to sit on his laps.
  2. It bears repeating that the Appellant was a person known to the complainant. I do not find any element of mistaken identity of the Appellant as the person who penetrated the complainants’ anus. The complainants categorically implicated him as the perpetrator of the sexual offences committed on their person. The evidence by the prosecution leaves no doubt that the appellant caused penetration of the complainants. By virtue of this evidence as presented in the Honourable Trial Court and since analyzed by this Court grounds 1 to 5 and 9 of the Petition to Appeal by the Appellant fail.

Defence by the Appellant

  1. On whether his defence was considered; the Appellant in the Honourable Trial Court testified that the two complainants were his pupils and that he was teaching them tuition. The teaching used to take place in one of their rooms as the school was closed due to the Covid 19 pandemic. The Appellant denied committing the alleged offence and stated that he was teaching about 13 pupils and the room had two doors. He stated that the children never complained between June and October and only learnt of the allegations on 15th October, 2020. He denied committing the offence. The trial magistrate considered the defence of the appellant and found it not plausible.  He observed that the defence was a mere denial and that it did not challenge the evidence of the prosecution which had remained consistent. It is therefore not correct for the appellant to claim that his defence was not considered.  It is my finding that the trial court considered all the evidence and reached the correct finding that the appellant had committed the offence as charged. For this reason Ground 6, 7 and 8 fail.
  2. In sum I find that the Prosecution proved its case beyond reasonable doubt that the Appellant penetrated PW 1 a child aged 9 and PW 2 a child aged 5. Therefore, the conviction was proper. Appeal on conviction therefore lacks merit and is hereby dismissed.

Conclusion and Disposition

  1. Having found that all the grounds of appeal have failed I hereby consequently find the Appeal as filed unmerited and hereby dismiss it; I shall not interfere with the conviction and sentence of the Honourable Trial Court.

IT IS SO ORDERED ACORDINGLY.

JUDGMENT DELIVERED THROUGH MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT MOMBASA THIS …6th….…………DAY OF ……March………………….……., 2025

……………………………………………………..

HON. LADY JUSTICE W. M. KAGENDO

(JUDGE)

HIGH COURT OF KENYA AT MOMBASA

(CRIMINAL DIVISION)

In the presence of:

M/s. Bebora, Court Assistant;

 MS Chero    p State Counsel;

Appellant     

    SAWA MCHANE MWINYIMKUU VS The Republic SAWA MCHANE MWINYIMKUU VS The Republic