- The Appellant was charged with defilement contrary to section 8 (1) as read with section 8(2) of the Sexual Offences Act No 3 of 2006.
- The particulars of the offence were that on 11th day of August, 2020 at Shonda area in Likoni Sub County within Mombasa County he unlawfully and intentionally caused his penis to penetrate the vagina of M.L a child aged 5 years.
- He was also charged with the alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act, No 3 of 2006.The particulars of the offence were that on 11th day of August 2020 at Shonda area in Likoni Sub County within Mombasa County he unlawfully and intentionally did an indecent act by touching the vagina of M.L. a child aged 5 years with his penis.
- The appellant pleaded not guilty to both the main and the alternative charge and the matter proceeded for hearing.
- The trial magistrate, Hon. V.O. Adet after hearing 4 prosecution witnesses and in the absence of any testimony by the appellant who opted not to give any evidence in his defence found that the prosecution had proved their case against the appellant beyond reasonable doubt and proceeded to convict and sentence the appellant to 40 years imprisonment.
- Dissatisfied by the said judgment, conviction and sentence, the appellant filed his petition of appeal based on the following grounds of appeal:
- That the Learned trial magistrate erred in law and fact for not considering that the issue of visual identification wasn’t left free from error due to the circumstances surrounding the scene of crime besides sequence of events were not conducive for positive identification.
- That the learned magistrate erred in law and fact failing to consider that the source of arrest was left in questionable circumstance, hence the ones who effected it were not available in court.
- That the learned magistrate failed to consider that the prosecution investigations were so flimsy to offer clear proof of the case.
- That the learned trial magistrate discharged my defence option which was exercised with the provision of law which was immersed by the ones who arrested me did not show up to account for my arrest.
Facts at Trial
- The Appellant took plea on 18.08.2020, denied the charges and a plea of not guilty was entered.
According to PW2 M.L, she was approached by the accused person who informed her that he would take her to a comfortable cool place and promised her money to buy crisps. She followed innocently and was taken to a house that was still under construction. The accused removed all her clothes and laid her down and removed his “dudu” and inserted in her vagina. The accused was seen by two women who shouted and attracted a crowd as the accused attempted to run away and caught him at the scene. The matter was reported to police who also arrived at the scene as the accused was being subjected to mob justice. PW2 positively identified the accused in court and persistently indicated that it was the accused who did the act to him. PW1, the minor’s father arrived at the scene as the accused was being beaten by a mob. PW4, a police officer also arrived at the scene as upon receiving a report and the accused was arrested at the scene.
PW3, a clinician examined the minor PW2 on 12/8/2020 and prepared the PRC and P3 form which were produced in evidence. As per PW3’s testimony PW2 had pain and had problems in walking, the genitalia were swollen and there was tenderness in the labia and the vagina wall which had fresh bruises indicative of penetration.
The Appeal was canvassed by way of written submissions.
Cross examination and Submissions by the Accused.
I have gone through the witnesses’ cross examination by the accused. He has raised the issue of identification and placement at the scene. The upshot of his submissions are geared towards discounting identification.
Analysis & Determination
The evidence of PW1, PW2 and PW4 overwhelmingly placed him at the scene and as the perpetrator of the act against the minor barring minor discrepancies in the sequence of events that are not material. The medical evidence by PW3 confirmed that indeed penetration did occur.
The offence of defilement is rooted on three main ingredients being the age of the victim (must be a minor), penetration and the proper identification of the perpetrator.
The first element is age. The Court of Appeal in Edwin Nyambogo Onsongo vs. Republic (2016) eKLR stated as follows in respect of proving the age of a victim in cases of defilement:“... 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.”
From the evidence on record the age of the minor in this case was proved to be 5 years old. A birth certificate of PW2, EXH1 was produced in evidence showing that she was born on 7/2/2015. This element has been proven.
The second ingredient is penetration which is defined under Section 2 of the Sexual Offences Act as follows:“The partial or complete insertion of the genital organ of a person into the genital organs of another person.”The same section defines “genital organs” to include;“the whole or part of male or female genital organs and for purposes of this Act includes the anus.”
Section 124 of the Evidence Act, Cap 80 provides as follows: “Notwithstanding the provisions of section 19 of the Oaths and Statutory Declaration Act, where the evidence of the victim admitted in accordance with that section on behalf of the Prosecution in the proceedings against any person for an offence, the accused shall not be liable to be convicted in proceedings against him unless it is corroborated by other evidence in support thereof implicating him. Provided that where in a criminal case involving a sexual offence, the only evidence is that of the alleged victim of the offense, the court shall receive the evidence of the alleged victim and proceed to convict the accused person, if for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.”
The medical evidence on record was presented by PW4, a clinician who gave his evidence and stated that there was penetration . He relied on the P3 form and the PRC form which he produced into evidence. The minor in her evidence in chief did testify that the accused penetrated her vagina with his “dudu”. There is no doubt that there was penetration of the minor’s vagina.
The third and last element is identification. In this case there was positive identification by the victim and corroborated by PW1 and PW4 who all saw the accused at the scene as he was being beaten by the members of the public.
As regards the sentence, the Appellant was charged with defilement contrary to section 8(1) and 8(2) of the sexual offences Act No 3 of 2006. Further, the said Section 8(2) of the said sexual offences Act expressly provides that a person found guilty of defilement of a child ages eleven year or less shall upon conviction be sentenced to imprisonment for life.
The appellant was sentenced him to serve a period of forty (40) year and I find that was a suitable sentence owing to the tender age of the child. He ought to be kept away from society.
The appeal on both the conviction and sentence fail and the trial courts verdict and sentence are upheld.
DATED SIGNED AND DELIVERED THIS 6THH DAY OF MARCH 2025
LADY JUSTICE WENDY KAGENDO
IN THE PRESENCE OF
THE APPELLANT
MS CHEROP FOR THE STATE
BEBORA COURT ASSISTANT
.