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(Being an appeal against the conviction and sentence judgment delivered on 30th November 2021 by Hon. V. Kachuodho (SPM) in Sexual Offence Case No. 53 of 2021 in Thika)
A. Introduction
1. The appellant being aggrieved by the decision of the trial court that convicted him for the offence of defilement contrary to section 8(1) as read together with section 8 (4) of the Sexual Offences Act Cap 63A has lodged this appeal. He seeks that his conviction be quashed and the 15 years imprisonment sentence set aside.
2. The appeal is premised on eleven (11) grounds which I reproduce as follows, THAT: -
i. The learned trial magistrate erred in both law and fact by convicting the appellant when the prosecution had not proved their case against the appellant beyond reasonable doubt.
ii. The learned trial magistrate erred in law and fact by failing to resolve the apparent doubts in the prosecution case in favour of the appellant.
iii. The learned trial magistrate erred in law and in facts when he rejected the solid defense by the appellant while relying on very weak evidence to convict the appellant.
iv. The learned trial magistrate erred in law and fact by failing to scrutinize and evaluate the prosecution evidence thereby arriving at an erroneous decision.
v. The learned trial magistrate erred in law and facts by failing to hold that the burden of proof at all times rested with the prosecution and could not shift to the appellant.
vi. The learned trial magistrate erred in law and facts in failing to find that the prosecution’s evidence was contradictory in material facts.
vii. The learned trial magistrate erred in law and facts in failing to find that no tangible evidence was formed or presented to the court linking the appellant to the commission of the offence.
viii. The learned trial magistrate relied on speculation, probabilities and possibilities to convict the appellant.
ix. The learned trial magistrate erred in law and facts when he failed to find that the prosecution did not prove the ingredients of the offense of defilement.
x. The learned trial magistrate erred in law and facts in dismissing the appellants defence.
xi. The learned trial magistrate erred in both facts and in law in scrutinizing the evidence of the complainant satisfactorily.
B. Background
3. Before the trial court, the appellant was charged with the offence of defilement contrary to section 8 (1) as read with section (4) of the Sexual Offences Act. The particulars of the offence were that on diverse dates between 5th June, 2020 and 10th June, 2020 at Witeithie township in Juja Sub-County within Kiambu County, he intentionally caused his penis to penetrate the vagina of Y.N.N. a girl aged 16 years old.
4. In the alternative, he was charged with the offence of committing an indecent act with a child contrary to Section 11 (1) of the Sexual of Offences Act (herein The Act). The particulars were that on diverse dates between 5th June, 2020 and 10th June, 2020 at Witeithie township in Juja Sub-County within Kiambu County, he intentionally touched the buttocks and vagina of Y.N.N. a girl aged 16 years old with his penis.
5. He pleaded not guilty and to prove its case, the prosecution called five (5) witnesses, whereupon being put on his defence, the appellant gave unsworn testimony and called three (3) witnesses.
C. Prosecution case
6. The Complainant, Y.N.N. testified as PW1. She stated that she had been having sex with the appellant on several occasions not just in June as he was her boyfriend and also a neighbor though she knew him even before he moved to their plot. That they were only discovered when one neighbor by the name Mercy saw PW1 going to the appellant’s house at night and informed her mother but on confrontation, she denied any relationship with him. That Mercy reported PW1 once again and this time PW1’s mother beat her and reported the matter at Weitethie Police Station and she was taken to hospital the next day. She stated that she was 17 years having been born on 20th August, 2003. She identified the appellant in court.
7. PW2, Gladys Njoki Njoroge, the minor’s mother testified that Mercy informed her of the relationship between PW1 and the appellant but PW1 would always deny upon enquiry and she only admitted after she was beaten and taken to the police station. That Mercy was a nickname but her real name was Judy. That when the appellant was arrested, he stated that he was PW1’s boyfriend and wanted to marry her. She confirmed that PW1 was born on 20th August 2003 and was in form 1 at Juja Secondary.
8. PW3, Judith Musenya Mutinda testified that on 26th June, 2020, she was preparing for work when she saw PW1 coming from a house inside the plot. That PW1 was a neighbor. That the next day, PW2 went to her home to inquire whether she had seen PW1 with a man in the plot and she told her that she did see PW1 coming out from a man’s house. She stated that she was also called referred by the nickname Mercy.
9. PW4, Patrick Munywa, a clinical officer at Kiandutu Health Centre testified and stated that he examined the minor on 30th June 2020. The minor was 16 years old at the time and was accompanied by PC Salome Kiarie and her mother. That the minor’s mother informed him that she had slept at a man’s house for five days. On examination, he found that the hymen was not intact and was also not freshly broken. That she also had an infection as observed from the vaginal discharge on labia and the cervix. He produced the PRC form, Lab results and P3 form as exhibits. 1, 2 and 3 respectively. He also stated that from the minor’s statement, the sex was voluntary but he did not examine the accused and could not ascertain whether she had sex within the 5 days.
10. PW5, PC Salome Kiarie, attached at Weiteithie Police Station. She stated that on the evening of 29th June, 2020, a defilement case was reported and allocated to her. That she took the minor and her mother to Kiandutu Health Centre where the minor was examined and P3 and PRC forms filled. That upon interrogation, PW2 informed her that she had been informed by neighbors that as soon as she would leave for the market PW1 would sneak into the appellant’s house and that the appellant would access PW1 through his brother’s wife. That the minor also informed her that she had sex several times with the appellant and based on that, she charged the appellant with the offence before court. She testified that the minor informed her that she and the appellant were lovers and stated they had sex severally but could not recall the dates. That the accused also informed her that the minor was his girlfriend and he wanted to marry her. She produced the minor’s birth certificate in proof of her age.
11. The prosecution closed its case and upon evaluation of the evidence on record, the trial court found a prima facie case had been established and placed him on his defence.
D. Defence case
12. DW1, the appellant, in his defence, gave unsworn evidence and stated that he was a boda rider and knew the minor as she lived in the same plot he was residing with together with his brother. That after school in 2019, he went to Weiteithie in 2020 to live with his brother. That he would leave at 5:00am and go back home at 6:50pm due to the 7:00pm curfew. That he did not know who the complainant lived with and they had no relationship at all as he was always at his work place where he was arrested. That he had gone to the police station over a dispute between the caretaker and landlord and while at the station one police officer asked the landlord whether he was the man. He denied that the minor ever went to his house which was near the tap used to fetch water. That the minor went to fetch water and it was assumed that she was going to his house. That he was never taken to hospital.
13. He stated that he was 21 years old and denied defiling the minor in June. That he started seeing the minor in February at the plot. That the caretaker had a dispute with the minor’s mother over claims that he was having an affair with her daughter yet she would lock the minor and her other siblings in the house from 6:30pm to 7:00am and give the keys to the caretaker.
14. DW2, John Karanja Kinyanjui, testified that the appellant was his brother who had been living with him since February 2020 and was a boda rider. That he would leave at 5:00am and return at 6:50pm. That the minor was a neighbor in the plot where she lived with her siblings and mother and that he was unaware whether the appellant had any kind of relationship with the complainant. That the appellant would never sleep with the minor when he was there, and that his wife was a housewife and always in the house and she never informed him of any such relationship.
15. DW3, Betty Nkirote, stated that the appellant was her brother in law. She stated that in May 2020, she had stopped working and was at home. That she lived with the complainant in the same plot. That the appellant would leave in the morning and go back in the evening with DW2, her husband. That she never heard of any relationship between the appellant and the minor. She further testified that she was not staying in the house through-out and would visit the market twice a week in the evening. That the appellant had keys to the house and would open even when she was not around. She stated that the minor was school going and she would not know if the appellant was sleeping with the minor. That she would leave to buy supper for around thirty minutes and never heard of any relationship between the appellant and the minor.
16. DW4, Samuel Wamueti testified that he knew the appellant who he worked with as a boda rider and they also lived in the same plot. That he also knew the complainant and they all lived in the same plot. He stated that the caretaker would lock them in at 6:00pm and open at 7:00am. That he would start work with the accused around 9:00am and they would leave at 6:30pm. That he was not always with the appellant but they were frequently together as the appellant was new and was learning from him. That he had never heard of any issues around the appellant. The appellant closed his case.
17. Upon evaluation of the entire evidence on record, the trial court rendered its judgment in which it identified four issues for determination: the age of the victim, whether there was penetration, whether the penetration was by the accused and the defense of the accused. On age, the trial court found that based on the birth certificate, the prosecution had proved that PW1 was a minor aged 16 years. On penetration, the trial court found that the minor testified that she had sex severally with the appellant and that her testimony was corroborated by that of PW4, the clinical officer who produced the medical documents which confirmed that there was enough evidence of penetration and it was found that the minor was defiled.
18. On the third and fourth issue, the trial court found that the minor had positively identified the accused as they lived in the same plot and she had known him prior to him moving to the plot when he went visiting in December 2019 and that she stated they were in love, the appellant was her boyfriend and they had sex severally. That the appellant’s defence was that he did not know the minor and his 3 witnesses testified that they were not always with him and would not know if he had a relationship with the minor.
19. The trial court found the minor truthful and honest and that she had no reason to lie against the appellant. It was thus found that the prosecution had proven that the appellant defiled the minor. The appellant was thus convicted with the offense of defilement and he was sentenced to 15 years imprisonment.
E. The Appeal
20. The appellant was aggrieved by the judgment, lodged this appeal. The appeal is as set out in the earlier paragraphs of this judgment. The appellant seeks that his conviction be quashed and the sentence set aside. The appellant relied on his written submissions filed on 4th October, 2024 whereas the respondent relied on theirs dated 25th November 2024.
a) Appellant’s Submissions
21. The Appellant reduced the grounds of appeal into five main grounds to wit: -
i. Whether the three elements of defilement were proved to the required standard of prove of beyond reasonable doubt.
ii. Whether the evidence of the complainant was freely and honestly obtained as required by law and whether there was corroboration of evidence to conform with the provisions of section 124 of the Evidence Act.
iii. Whether there are material inconsistencies and contradictions that goes to the root cause of the instant matter.
iv. Whether the prosecution dislodged the defence evidence required by law.
v. Whether the sentence meted on the appellant was harsh and excessive against the rules of natural justice.
22. On the first ground, it was submitted that only a copy of the birth certificate was produced and not the original and no leave was sought from court contrary to Section 68 of the Evidence Act that provides for court permission before secondary evidence in form of a copy is produced, thus age was not sufficiently proven.
23. As regards penetration, it was submitted that PW1 could not be believed as her evidence was obtained through coercion by her mother and police officers at the police station contrary to Article 50 (4) of the Constitution, thus her evidence was inadmissible and ought to have been expunged from the proceedings. That PW4’s evidence was that the hymen was not freshly torn thus the finding could not be relied on to prove penetration as held in P. K. W vs Republic (2012) eKLR. That the evidence that the minor was seen leaving the appellant’s home was not enough to convict as it was a remote reason being that the house belonged to the appellant’s brother and the appellant was only a visitor there. The appellant relied on the case of Paul Kenya Gitari CR. Appeal No. 13 of 2014 at Nyeri COA and submitted that PW3 Judy ought to have followed the complainant to see what was happening in the house, confirm that the appellant was in the house and whether there were other people. Hence submitted that penetration was not proved.
24. As regards identification, it was submitted that even though the minor and appellant were neighbors, identification ought not have been whether the two knew each other, but about whether it was the appellant who defiled the minor. That the trial’s court finding that the minor was truthful and honest was not correct as the minor had denied any relationship between her and the appellant and only changed her statement after she was beaten and intimidated by the police officers. That she involuntarily said that she had sex with the appellant and truth had no shades and the first statement made by one was always the best version. The appellant relied on Bernard Gathiaka Mbugua & 4 Others vs Republic (2016) eKLR.
25. On the second ground relating to whether PW1’s evidence was freely obtained and corroborated, it was submitted that PW1 gave two sets of information to the police and to her mother in her initial interrogation and such information changed when she was beaten and threatened. That her mother took her to the police for her to reform and was thus aware that her daughter was promiscuous. That PW1’s evidence was obtained illegally and was inadmissible. On corroboration, it was submitted that the opinion of the clinical officer had no probative value to proof defilement and specifically that the appellant committed such offence. That PW1’s evidence ought not to have been believed as she was not honest and believable as required by Section 124 of the Evidence Act.
26. On the third ground, it was submitted that there were material inconsistencies and contradictions which if considered would yield different results. That PW3, Judy, contradicted herself twice by first saying that if one goes to another’s house they must have sex, then she later changed to say it was not obvious that they must have had sex. That the house wherein the minor was seen coming from was not the appellant’s and there was no confirmation that he was the one inside and that the two had sexual intercourse. That the contradiction was material and the trial court ought not have relied on PW3’s testimony.
27. Further, that PW1 also contradicted herself by giving two sets of account on what happened during the alleged defilement wherein she first denied any relationship with the appellant and only changed the position after she was beaten and taken to the police station.
28. On the fourth ground, it was submitted that despite the appellant raising a defense, the prosecution failed to counter the defense which cast doubt on the prosecution’s case. That where an accused raises a defense, the prosecution was mandated to disprove the evidence beyond reasonable doubt. That the appellant testified that the minor would be locked in by her mother from 6:00am to 7:00pm and this evidence was never dislodged by the prosecution despite it casting doubt on the prosecution’s case. That DW2, the appellant’s brother also testified that the house belonged to him thus the finding that the house belonged to the appellant was erroneous.
29. On the final ground, it was submitted that the sentence imposed on the appellant was excessive, harsh and disproportionate to the alleged offence and that the minimum sentence under Section 8 of the Sexual Offences Act was declared unconstitutional and the trial court had powers to give proper sentences. That the appellant and minor had almost similar ages.
30. This Court was thus urged to uphold the appeal and acquit the appellant.
b) Respondent’s Submissions
31. The respondent opposed the appeal in its entirety asserting that the prosecution established and proved its case beyond reasonable doubt. That all ingredients of defilement were all proven.
32. On age, it was submitted that the prosecution produced the minor’s birth certificate which indicated that she was born on 20th August 2003 and the incident took place in June 2020 when she was 16 years old thus she was within the bracket defined by Section 8(4) of the Sexual Offences Act. That age was thus proved and reliance was put on Mwalango Chichoro Vs. Mwanjembe V Republic eKLR wherein it was held that age could be proven by documentary evidence such as birth certificate, baptism card or by oral evidence if the child was sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof.
33. On penetration, it was submitted for the respondent that the main evidence was that of the minor and the medical evidence contained in the P3 form. That the minor testified that she had sex with the appellant 7 times not only in the month of June.
34. As regards identity, it was testified that the minor clearly indicated that she knew the accused as they lived in the same plot and they were in love. That PW1 was well known to the appellant thus the trial court correctly found that the appellant had defiled the victim.
35. On whether there were any inconsistencies, it was submitted that all the prosecution witnesses were consistent and corroborated each other.
36. On whether the sentence was sound, it was submitted that the trial court acted within the law as Section 8(4) of the Sexual Offences Act provided for a minimum sentence of 15 years imprisonment on conviction.
37. It was thus submitted that the prosecution discharged its burden and the evidence tendered was not discredited by the defence thus the appeal ought to be dismissed.
F. Analysis and determination
38. This being a first appeal, this Court has a duty to reconsider and re-evaluate the evidence adduced before the trial court and make its own independent conclusion. It should however give regard to the fact that it has neither heard nor seen the witnesses testify. See the cases of Pandya v R {1957} EA 336; Ruwalla v R {1957} EA 570 and Kisumu Criminal Appeal No. 28 of 2009 David Njuguna Wairimu v. Republic [2010] eKLR.
39. Having considered the record of appeal as well as the submissions by parties, I discern the following issues for determination: -
a) Whether the offence of defilement was proved;
b) Whether there were contradictions and inconsistencies; and
c) Whether the sentence was harsh and excessive.
(a) Whether the offence of defilement was proved
40. In the case of George Opondo Olunga v Republic (2016) eKLR the ingredients for the offence of defilement were set out as: -
a. Proof of the age of the victim;
b. Proof of penetration or indecent act;
c. Identification of the perpetrator.
41. Age is a core ingredient upon which the foundation of the offence of defilement is. The importance of proving age was underscored by the Court of Appeal in the case of Hadson Ali Mwachongo v Republic [2016] eKLR, as follows: -
“The importance of proving the age of the victim of defilement under the Sexual Offences Act by cogent evidence cannot be gainsaid. It is not in doubt that the age of the victim is an essential ingredient of the offence of defilement and forms an important part of the charge because the prescribed sentence is dependent on the age of the victim. In Alfayo Gombe Okello v Republic Cr. App 203 of 2009 (Kisumu) this Court stated as follows: -
In its wisdom, Parliament chose to categorize the gravity of that offence on the basis of age of the victim, and consequently the age of the victim is a necessary ingredient of the offence which ought to be proved beyond reasonable doubt. This must be so because dire consequences flow from proof of the offence under section 8(1)”.
42. In this case, the charge sheet indicated that the minor was 16 years. The birth certificate on record identified by both PW1 and PW2, the complainant and her mother respectively, indicated that she was born on 20th August, 2003 thus the minor was indeed 16 at the time of the alleged incident. The birth certificate was produced by PW5, the police officer and its production was never challenged. 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.”
43. Consequently, I am satisfied that the age of the minor was proved by both the oral evidence of PW1, the minor herself, and that of her mother, PW2. This oral evidence was further corroborated by the birth certificate that was produced in evidence. The issue whether the same was copy was never raised before the trial court and it holds no premium in this appeal.
44. On penetration, a court should always warn itself and take cognizant of the fact that sexual offences such as defilement are offences that ordinarily take place in secrecy and/or privacy. Secondly, it is also trite that the act of penetration is proved by way of oral evidence and medical evidence is not mandatory but corroborative. This is the rationale in the proviso in section 124 of the Evidence Act on reliance of a single witness testimony to convict.
45. In the case of Bassita Hussein v Uganda, Supreme Court Criminal Appeal No 35 of 1995, the court stated thus: -
“The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually, the sexual intercourse is proved by the victims over evidence and corroborated by medical evidence or other evidence.”
46. Am also cognizant of caution required in dealing with the testimony of victim alone. The Court of Appeal in Chila v. Republic (1967) E.A 722 articulated this position thus: -
“The Judge should warn … himself of the danger of acting on uncorroborated testimony of the complainant, but having done so he may convict in the absence of corroboration if he is satisfied that her evidence is truthful. If no such warning is given, then the conviction will normally be set aside unless court is satisfied that there has been no failure of justice.”
47. The trial court relied on the evidence of PW1, the minor, and PW4, the clinical officer, to conclude that there was penetration. PW1 testified that she had been having sex with the appellant on several occasions as he was her boyfriend and was also a neighbor. The trial court found that the witness was credible and trust worth. She was 16 years old, and while she was a child, she was able to state that they had been having sex with the appellant. Notably, the appellant never challenged her testimony in cross-examination. The sex that PW1 stated in court is an act of penetration, which was corroborated by the testimony of PW4, the clinical officer. I find that the trial court correctly found that penetration was proved.
48. Having established that the minor was penetrated, the next issue is the identity of the perpetrator. It is common ground that both the complainant and the appellant knew each other. They lived in the same plot and the appellant confirmed so in his evidence in defence. The victim’s testimony that it is the appellant with whom she had been having sex with was not rebutted by the defence in cross-examination. The appellant’s own witnesses also confirmed that the appellant lived in that plot. As to the charge of defilement, the appellant’s witnesses stated that they were not aware if the appellant and the complainant had any form of relationship.
49. The appellant’s defence was that he did not have any sexual relationship with the complainant. However, as stated earlier, when the complainant, PW1 testified that they were girl friend and boy friend with a promise of marriage, the appellant did not rebut this in cross-examination. The question of a dispute between the victim’s mother and the caretaker was also never raised to PW2 in cross-examination. I thus found that the appellant’s defence was a mere denial. I therefore agree with the trial court that the offence of defilement was proved to the required standard.
Whether there were contradictions and inconsistencies
50. The appellant alleged that the prosecution’s case was marred with contradictions and inconsistencies. In particular that PW1 first denied that she was in a relationship with the appellant and then changed her testimony to tell the police that they were in a relationship. Secondly, that PW3 first stated that when people go into the same house they must have sex, and then changed her mind to say, it is not a must that when people go into the same house, they must have sex.
51. The law on the impact of contradictions and inconsistencies in the prosecution case is settled. It is not all contradictions and inconsistencies that are fatal to the prosecution’s case. The contradictions must be material enough as to prejudice the accused person so as not to understand the charge he/she is facing so as not to mount a defence. Minor contradictions that do not go to the core of the case are not fatal to the prosecution case. In any event, no two witnesses can perceive the same event in exact manner.
52. Further, in considering contradictions and inconsistencies, the court looks at the totality of the evidence. It is the evidence of all witnesses as it corroborates and/or contradicts each other.
53. In the case before court, I find that the aspersions being cast are against the testimony of PW3 is not only remote but also in regard to what she ‘thinks’. Whether it is a must that when two people go into a house they must have sex? This question solicited and opinion from the witness and its answer cannot be said to form a contradiction to her testimony in court. Secondly, the fact that PW1 first denied that she was in a relationship with the appellant to her mother at the first instance is not a contradiction to her evidence in court. The victim, being a minor knew that her mother will not approve any relationship between her and the appellant, hence her first instinct was to deny. However, upon further probing, an act that is common with victims in sexual offences, she opened up and stated the truth.
54. Consequently, I find the allegations of contradictions and inconsistencies in the prosecution case to be without merit.
Whether the sentence was harsh and excessive
55. As to whether the sentence was harsh and excessive, Section 8(4) of the Sexual Offenses Act provides: -
“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.”
56. While, there has been judicial discourse on constitutionality of the minimum sentences under Section 8 of the Sexual Offences Act. Recently, the Supreme Court settled the issue in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) (12 July 2024) (Judgment) where it overturned the decision of the Court of Appeal which had found Section 8 of The Act to be unconstitutional for prescribing a mandatory minimum sentence upon conviction. The Supreme Court upheld the constitutionality of the said law and this Court is bound by such precedent. The Supreme Court held that: -
“We must also reaffirm that, although sentencing is an exercise of judicial discretion, it is Parliament and not the Judiciary that sets the parameters of sentencing for each crime in statute. As such, striking down a sentence provided for in Statute must be based not only on
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(Being an appeal against the conviction and sentence judgment delivered on 30th November 2021 by Hon. V. Kachuodho (SPM) in Sexual Offence Case No. 53 of 2021 in Thika)
A. Introduction
1. The appellant being aggrieved by the decision of the trial court that convicted him for the offence of defilement contrary to section 8(1) as read together with section 8 (4) of the Sexual Offences Act Cap 63A has lodged this appeal. He seeks that his conviction be quashed and the 15 years imprisonment sentence set aside.
2. The appeal is premised on eleven (11) grounds which I reproduce as follows, THAT: -
i. The learned trial magistrate erred in both law and fact by convicting the appellant when the prosecution had not proved their case against the appellant beyond reasonable doubt.
ii. The learned trial magistrate erred in law and fact by failing to resolve the apparent doubts in the prosecution case in favour of the appellant.
iii. The learned trial magistrate erred in law and in facts when he rejected the solid defense by the appellant while relying on very weak evidence to convict the appellant.
iv. The learned trial magistrate erred in law and fact by failing to scrutinize and evaluate the prosecution evidence thereby arriving at an erroneous decision.
v. The learned trial magistrate erred in law and facts by failing to hold that the burden of proof at all times rested with the prosecution and could not shift to the appellant.
vi. The learned trial magistrate erred in law and facts in failing to find that the prosecution’s evidence was contradictory in material facts.
vii. The learned trial magistrate erred in law and facts in failing to find that no tangible evidence was formed or presented to the court linking the appellant to the commission of the offence.
viii. The learned trial magistrate relied on speculation, probabilities and possibilities to convict the appellant.
ix. The learned trial magistrate erred in law and facts when he failed to find that the prosecution did not prove the ingredients of the offense of defilement.
x. The learned trial magistrate erred in law and facts in dismissing the appellants defence.
xi. The learned trial magistrate erred in both facts and in law in scrutinizing the evidence of the complainant satisfactorily.
B. Background
3. Before the trial court, the appellant was charged with the offence of defilement contrary to section 8 (1) as read with section (4) of the Sexual Offences Act. The particulars of the offence were that on diverse dates between 5th June, 2020 and 10th June, 2020 at Witeithie township in Juja Sub-County within Kiambu County, he intentionally caused his penis to penetrate the vagina of Y.N.N. a girl aged 16 years old.
4. In the alternative, he was charged with the offence of committing an indecent act with a child contrary to Section 11 (1) of the Sexual of Offences Act (herein The Act). The particulars were that on diverse dates between 5th June, 2020 and 10th June, 2020 at Witeithie township in Juja Sub-County within Kiambu County, he intentionally touched the buttocks and vagina of Y.N.N. a girl aged 16 years old with his penis.
5. He pleaded not guilty and to prove its case, the prosecution called five (5) witnesses, whereupon being put on his defence, the appellant gave unsworn testimony and called three (3) witnesses.
C. Prosecution case
6. The Complainant, Y.N.N. testified as PW1. She stated that she had been having sex with the appellant on several occasions not just in June as he was her boyfriend and also a neighbor though she knew him even before he moved to their plot. That they were only discovered when one neighbor by the name Mercy saw PW1 going to the appellant’s house at night and informed her mother but on confrontation, she denied any relationship with him. That Mercy reported PW1 once again and this time PW1’s mother beat her and reported the matter at Weitethie Police Station and she was taken to hospital the next day. She stated that she was 17 years having been born on 20th August, 2003. She identified the appellant in court.
7. PW2, Gladys Njoki Njoroge, the minor’s mother testified that Mercy informed her of the relationship between PW1 and the appellant but PW1 would always deny upon enquiry and she only admitted after she was beaten and taken to the police station. That Mercy was a nickname but her real name was Judy. That when the appellant was arrested, he stated that he was PW1’s boyfriend and wanted to marry her. She confirmed that PW1 was born on 20th August 2003 and was in form 1 at Juja Secondary.
8. PW3, Judith Musenya Mutinda testified that on 26th June, 2020, she was preparing for work when she saw PW1 coming from a house inside the plot. That PW1 was a neighbor. That the next day, PW2 went to her home to inquire whether she had seen PW1 with a man in the plot and she told her that she did see PW1 coming out from a man’s house. She stated that she was also called referred by the nickname Mercy.
9. PW4, Patrick Munywa, a clinical officer at Kiandutu Health Centre testified and stated that he examined the minor on 30th June 2020. The minor was 16 years old at the time and was accompanied by PC Salome Kiarie and her mother. That the minor’s mother informed him that she had slept at a man’s house for five days. On examination, he found that the hymen was not intact and was also not freshly broken. That she also had an infection as observed from the vaginal discharge on labia and the cervix. He produced the PRC form, Lab results and P3 form as exhibits. 1, 2 and 3 respectively. He also stated that from the minor’s statement, the sex was voluntary but he did not examine the accused and could not ascertain whether she had sex within the 5 days.
10. PW5, PC Salome Kiarie, attached at Weiteithie Police Station. She stated that on the evening of 29th June, 2020, a defilement case was reported and allocated to her. That she took the minor and her mother to Kiandutu Health Centre where the minor was examined and P3 and PRC forms filled. That upon interrogation, PW2 informed her that she had been informed by neighbors that as soon as she would leave for the market PW1 would sneak into the appellant’s house and that the appellant would access PW1 through his brother’s wife. That the minor also informed her that she had sex several times with the appellant and based on that, she charged the appellant with the offence before court. She testified that the minor informed her that she and the appellant were lovers and stated they had sex severally but could not recall the dates. That the accused also informed her that the minor was his girlfriend and he wanted to marry her. She produced the minor’s birth certificate in proof of her age.
11. The prosecution closed its case and upon evaluation of the evidence on record, the trial court found a prima facie case had been established and placed him on his defence.
D. Defence case
12. DW1, the appellant, in his defence, gave unsworn evidence and stated that he was a boda rider and knew the minor as she lived in the same plot he was residing with together with his brother. That after school in 2019, he went to Weiteithie in 2020 to live with his brother. That he would leave at 5:00am and go back home at 6:50pm due to the 7:00pm curfew. That he did not know who the complainant lived with and they had no relationship at all as he was always at his work place where he was arrested. That he had gone to the police station over a dispute between the caretaker and landlord and while at the station one police officer asked the landlord whether he was the man. He denied that the minor ever went to his house which was near the tap used to fetch water. That the minor went to fetch water and it was assumed that she was going to his house. That he was never taken to hospital.
13. He stated that he was 21 years old and denied defiling the minor in June. That he started seeing the minor in February at the plot. That the caretaker had a dispute with the minor’s mother over claims that he was having an affair with her daughter yet she would lock the minor and her other siblings in the house from 6:30pm to 7:00am and give the keys to the caretaker.
14. DW2, John Karanja Kinyanjui, testified that the appellant was his brother who had been living with him since February 2020 and was a boda rider. That he would leave at 5:00am and return at 6:50pm. That the minor was a neighbor in the plot where she lived with her siblings and mother and that he was unaware whether the appellant had any kind of relationship with the complainant. That the appellant would never sleep with the minor when he was there, and that his wife was a housewife and always in the house and she never informed him of any such relationship.
15. DW3, Betty Nkirote, stated that the appellant was her brother in law. She stated that in May 2020, she had stopped working and was at home. That she lived with the complainant in the same plot. That the appellant would leave in the morning and go back in the evening with DW2, her husband. That she never heard of any relationship between the appellant and the minor. She further testified that she was not staying in the house through-out and would visit the market twice a week in the evening. That the appellant had keys to the house and would open even when she was not around. She stated that the minor was school going and she would not know if the appellant was sleeping with the minor. That she would leave to buy supper for around thirty minutes and never heard of any relationship between the appellant and the minor.
16. DW4, Samuel Wamueti testified that he knew the appellant who he worked with as a boda rider and they also lived in the same plot. That he also knew the complainant and they all lived in the same plot. He stated that the caretaker would lock them in at 6:00pm and open at 7:00am. That he would start work with the accused around 9:00am and they would leave at 6:30pm. That he was not always with the appellant but they were frequently together as the appellant was new and was learning from him. That he had never heard of any issues around the appellant. The appellant closed his case.
17. Upon evaluation of the entire evidence on record, the trial court rendered its judgment in which it identified four issues for determination: the age of the victim, whether there was penetration, whether the penetration was by the accused and the defense of the accused. On age, the trial court found that based on the birth certificate, the prosecution had proved that PW1 was a minor aged 16 years. On penetration, the trial court found that the minor testified that she had sex severally with the appellant and that her testimony was corroborated by that of PW4, the clinical officer who produced the medical documents which confirmed that there was enough evidence of penetration and it was found that the minor was defiled.
18. On the third and fourth issue, the trial court found that the minor had positively identified the accused as they lived in the same plot and she had known him prior to him moving to the plot when he went visiting in December 2019 and that she stated they were in love, the appellant was her boyfriend and they had sex severally. That the appellant’s defence was that he did not know the minor and his 3 witnesses testified that they were not always with him and would not know if he had a relationship with the minor.
19. The trial court found the minor truthful and honest and that she had no reason to lie against the appellant. It was thus found that the prosecution had proven that the appellant defiled the minor. The appellant was thus convicted with the offense of defilement and he was sentenced to 15 years imprisonment.
E. The Appeal
20. The appellant was aggrieved by the judgment, lodged this appeal. The appeal is as set out in the earlier paragraphs of this judgment. The appellant seeks that his conviction be quashed and the sentence set aside. The appellant relied on his written submissions filed on 4th October, 2024 whereas the respondent relied on theirs dated 25th November 2024.
a) Appellant’s Submissions
21. The Appellant reduced the grounds of appeal into five main grounds to wit: -
i. Whether the three elements of defilement were proved to the required standard of prove of beyond reasonable doubt.
ii. Whether the evidence of the complainant was freely and honestly obtained as required by law and whether there was corroboration of evidence to conform with the provisions of section 124 of the Evidence Act.
iii. Whether there are material inconsistencies and contradictions that goes to the root cause of the instant matter.
iv. Whether the prosecution dislodged the defence evidence required by law.
v. Whether the sentence meted on the appellant was harsh and excessive against the rules of natural justice.
22. On the first ground, it was submitted that only a copy of the birth certificate was produced and not the original and no leave was sought from court contrary to Section 68 of the Evidence Act that provides for court permission before secondary evidence in form of a copy is produced, thus age was not sufficiently proven.
23. As regards penetration, it was submitted that PW1 could not be believed as her evidence was obtained through coercion by her mother and police officers at the police station contrary to Article 50 (4) of the Constitution, thus her evidence was inadmissible and ought to have been expunged from the proceedings. That PW4’s evidence was that the hymen was not freshly torn thus the finding could not be relied on to prove penetration as held in P. K. W vs Republic (2012) eKLR. That the evidence that the minor was seen leaving the appellant’s home was not enough to convict as it was a remote reason being that the house belonged to the appellant’s brother and the appellant was only a visitor there. The appellant relied on the case of Paul Kenya Gitari CR. Appeal No. 13 of 2014 at Nyeri COA and submitted that PW3 Judy ought to have followed the complainant to see what was happening in the house, confirm that the appellant was in the house and whether there were other people. Hence submitted that penetration was not proved.
24. As regards identification, it was submitted that even though the minor and appellant were neighbors, identification ought not have been whether the two knew each other, but about whether it was the appellant who defiled the minor. That the trial’s court finding that the minor was truthful and honest was not correct as the minor had denied any relationship between her and the appellant and only changed her statement after she was beaten and intimidated by the police officers. That she involuntarily said that she had sex with the appellant and truth had no shades and the first statement made by one was always the best version. The appellant relied on Bernard Gathiaka Mbugua & 4 Others vs Republic (2016) eKLR.
25. On the second ground relating to whether PW1’s evidence was freely obtained and corroborated, it was submitted that PW1 gave two sets of information to the police and to her mother in her initial interrogation and such information changed when she was beaten and threatened. That her mother took her to the police for her to reform and was thus aware that her daughter was promiscuous. That PW1’s evidence was obtained illegally and was inadmissible. On corroboration, it was submitted that the opinion of the clinical officer had no probative value to proof defilement and specifically that the appellant committed such offence. That PW1’s evidence ought not to have been believed as she was not honest and believable as required by Section 124 of the Evidence Act.
26. On the third ground, it was submitted that there were material inconsistencies and contradictions which if considered would yield different results. That PW3, Judy, contradicted herself twice by first saying that if one goes to another’s house they must have sex, then she later changed to say it was not obvious that they must have had sex. That the house wherein the minor was seen coming from was not the appellant’s and there was no confirmation that he was the one inside and that the two had sexual intercourse. That the contradiction was material and the trial court ought not have relied on PW3’s testimony.
27. Further, that PW1 also contradicted herself by giving two sets of account on what happened during the alleged defilement wherein she first denied any relationship with the appellant and only changed the position after she was beaten and taken to the police station.
28. On the fourth ground, it was submitted that despite the appellant raising a defense, the prosecution failed to counter the defense which cast doubt on the prosecution’s case. That where an accused raises a defense, the prosecution was mandated to disprove the evidence beyond reasonable doubt. That the appellant testified that the minor would be locked in by her mother from 6:00am to 7:00pm and this evidence was never dislodged by the prosecution despite it casting doubt on the prosecution’s case. That DW2, the appellant’s brother also testified that the house belonged to him thus the finding that the house belonged to the appellant was erroneous.
29. On the final ground, it was submitted that the sentence imposed on the appellant was excessive, harsh and disproportionate to the alleged offence and that the minimum sentence under Section 8 of the Sexual Offences Act was declared unconstitutional and the trial court had powers to give proper sentences. That the appellant and minor had almost similar ages.
30. This Court was thus urged to uphold the appeal and acquit the appellant.
b) Respondent’s Submissions
31. The respondent opposed the appeal in its entirety asserting that the prosecution established and proved its case beyond reasonable doubt. That all ingredients of defilement were all proven.
32. On age, it was submitted that the prosecution produced the minor’s birth certificate which indicated that she was born on 20th August 2003 and the incident took place in June 2020 when she was 16 years old thus she was within the bracket defined by Section 8(4) of the Sexual Offences Act. That age was thus proved and reliance was put on Mwalango Chichoro Vs. Mwanjembe V Republic eKLR wherein it was held that age could be proven by documentary evidence such as birth certificate, baptism card or by oral evidence if the child was sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof.
33. On penetration, it was submitted for the respondent that the main evidence was that of the minor and the medical evidence contained in the P3 form. That the minor testified that she had sex with the appellant 7 times not only in the month of June.
34. As regards identity, it was testified that the minor clearly indicated that she knew the accused as they lived in the same plot and they were in love. That PW1 was well known to the appellant thus the trial court correctly found that the appellant had defiled the victim.
35. On whether there were any inconsistencies, it was submitted that all the prosecution witnesses were consistent and corroborated each other.
36. On whether the sentence was sound, it was submitted that the trial court acted within the law as Section 8(4) of the Sexual Offences Act provided for a minimum sentence of 15 years imprisonment on conviction.
37. It was thus submitted that the prosecution discharged its burden and the evidence tendered was not discredited by the defence thus the appeal ought to be dismissed.
F. Analysis and determination
38. This being a first appeal, this Court has a duty to reconsider and re-evaluate the evidence adduced before the trial court and make its own independent conclusion. It should however give regard to the fact that it has neither heard nor seen the witnesses testify. See the cases of Pandya v R {1957} EA 336; Ruwalla v R {1957} EA 570 and Kisumu Criminal Appeal No. 28 of 2009 David Njuguna Wairimu v. Republic [2010] eKLR.
39. Having considered the record of appeal as well as the submissions by parties, I discern the following issues for determination: -
a) Whether the offence of defilement was proved;
b) Whether there were contradictions and inconsistencies; and
c) Whether the sentence was harsh and excessive.
(a) Whether the offence of defilement was proved
40. In the case of George Opondo Olunga v Republic (2016) eKLR the ingredients for the offence of defilement were set out as: -
a. Proof of the age of the victim;
b. Proof of penetration or indecent act;
c. Identification of the perpetrator.
41. Age is a core ingredient upon which the foundation of the offence of defilement is. The importance of proving age was underscored by the Court of Appeal in the case of Hadson Ali Mwachongo v Republic [2016] eKLR, as follows: -
“The importance of proving the age of the victim of defilement under the Sexual Offences Act by cogent evidence cannot be gainsaid. It is not in doubt that the age of the victim is an essential ingredient of the offence of defilement and forms an important part of the charge because the prescribed sentence is dependent on the age of the victim. In Alfayo Gombe Okello v Republic Cr. App 203 of 2009 (Kisumu) this Court stated as follows: -
In its wisdom, Parliament chose to categorize the gravity of that offence on the basis of age of the victim, and consequently the age of the victim is a necessary ingredient of the offence which ought to be proved beyond reasonable doubt. This must be so because dire consequences flow from proof of the offence under section 8(1)”.
42. In this case, the charge sheet indicated that the minor was 16 years. The birth certificate on record identified by both PW1 and PW2, the complainant and her mother respectively, indicated that she was born on 20th August, 2003 thus the minor was indeed 16 at the time of the alleged incident. The birth certificate was produced by PW5, the police officer and its production was never challenged. 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.”
43. Consequently, I am satisfied that the age of the minor was proved by both the oral evidence of PW1, the minor herself, and that of her mother, PW2. This oral evidence was further corroborated by the birth certificate that was produced in evidence. The issue whether the same was copy was never raised before the trial court and it holds no premium in this appeal.
44. On penetration, a court should always warn itself and take cognizant of the fact that sexual offences such as defilement are offences that ordinarily take place in secrecy and/or privacy. Secondly, it is also trite that the act of penetration is proved by way of oral evidence and medical evidence is not mandatory but corroborative. This is the rationale in the proviso in section 124 of the Evidence Act on reliance of a single witness testimony to convict.
45. In the case of Bassita Hussein v Uganda, Supreme Court Criminal Appeal No 35 of 1995, the court stated thus: -
“The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually, the sexual intercourse is proved by the victims over evidence and corroborated by medical evidence or other evidence.”
46. Am also cognizant of caution required in dealing with the testimony of victim alone. The Court of Appeal in Chila v. Republic (1967) E.A 722 articulated this position thus: -
“The Judge should warn … himself of the danger of acting on uncorroborated testimony of the complainant, but having done so he may convict in the absence of corroboration if he is satisfied that her evidence is truthful. If no such warning is given, then the conviction will normally be set aside unless court is satisfied that there has been no failure of justice.”
47. The trial court relied on the evidence of PW1, the minor, and PW4, the clinical officer, to conclude that there was penetration. PW1 testified that she had been having sex with the appellant on several occasions as he was her boyfriend and was also a neighbor. The trial court found that the witness was credible and trust worth. She was 16 years old, and while she was a child, she was able to state that they had been having sex with the appellant. Notably, the appellant never challenged her testimony in cross-examination. The sex that PW1 stated in court is an act of penetration, which was corroborated by the testimony of PW4, the clinical officer. I find that the trial court correctly found that penetration was proved.
48. Having established that the minor was penetrated, the next issue is the identity of the perpetrator. It is common ground that both the complainant and the appellant knew each other. They lived in the same plot and the appellant confirmed so in his evidence in defence. The victim’s testimony that it is the appellant with whom she had been having sex with was not rebutted by the defence in cross-examination. The appellant’s own witnesses also confirmed that the appellant lived in that plot. As to the charge of defilement, the appellant’s witnesses stated that they were not aware if the appellant and the complainant had any form of relationship.
49. The appellant’s defence was that he did not have any sexual relationship with the complainant. However, as stated earlier, when the complainant, PW1 testified that they were girl friend and boy friend with a promise of marriage, the appellant did not rebut this in cross-examination. The question of a dispute between the victim’s mother and the caretaker was also never raised to PW2 in cross-examination. I thus found that the appellant’s defence was a mere denial. I therefore agree with the trial court that the offence of defilement was proved to the required standard.
Whether there were contradictions and inconsistencies
50. The appellant alleged that the prosecution’s case was marred with contradictions and inconsistencies. In particular that PW1 first denied that she was in a relationship with the appellant and then changed her testimony to tell the police that they were in a relationship. Secondly, that PW3 first stated that when people go into the same house they must have sex, and then changed her mind to say, it is not a must that when people go into the same house, they must have sex.
51. The law on the impact of contradictions and inconsistencies in the prosecution case is settled. It is not all contradictions and inconsistencies that are fatal to the prosecution’s case. The contradictions must be material enough as to prejudice the accused person so as not to understand the charge he/she is facing so as not to mount a defence. Minor contradictions that do not go to the core of the case are not fatal to the prosecution case. In any event, no two witnesses can perceive the same event in exact manner.
52. Further, in considering contradictions and inconsistencies, the court looks at the totality of the evidence. It is the evidence of all witnesses as it corroborates and/or contradicts each other.
53. In the case before court, I find that the aspersions being cast are against the testimony of PW3 is not only remote but also in regard to what she ‘thinks’. Whether it is a must that when two people go into a house they must have sex? This question solicited and opinion from the witness and its answer cannot be said to form a contradiction to her testimony in court. Secondly, the fact that PW1 first denied that she was in a relationship with the appellant to her mother at the first instance is not a contradiction to her evidence in court. The victim, being a minor knew that her mother will not approve any relationship between her and the appellant, hence her first instinct was to deny. However, upon further probing, an act that is common with victims in sexual offences, she opened up and stated the truth.
54. Consequently, I find the allegations of contradictions and inconsistencies in the prosecution case to be without merit.
Whether the sentence was harsh and excessive
55. As to whether the sentence was harsh and excessive, Section 8(4) of the Sexual Offenses Act provides: -
“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.”
56. While, there has been judicial discourse on constitutionality of the minimum sentences under Section 8 of the Sexual Offences Act. Recently, the Supreme Court settled the issue in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) (12 July 2024) (Judgment) where it overturned the decision of the Court of Appeal which had found Section 8 of The Act to be unconstitutional for prescribing a mandatory minimum sentence upon conviction. The Supreme Court upheld the constitutionality of the said law and this Court is bound by such precedent. The Supreme Court held that: -
“We must also reaffirm that, although sentencing is an exercise of judicial discretion, it is Parliament and not the Judiciary that sets the parameters of sentencing for each crime in statute. As such, striking down a sentence provided for in Statute must be based not only on
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