(Arising from the conviction and sentence in Shanzu Chief Magistrate's Criminanal Case SO NUMBER 137 0F 2017.(Hon Nelly Kariuki)
- The Appellant was charged with the offence of defilement of a girl contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006. It was alleged that the appellant on 5th November 2019 at Guu Ngombe, Mwakirunge Area, Bamburi Location in Kisauni sub-County intentionally and unlawfully caused his penis to penetrate the vagina of J.M.G, a child aged 15 years.
- He was also charged with 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. The particulars of the offence were that on 5th November 2019 at Guu Ngombe, Mwakirunge Area, Bamburi Location in Kisauni sub-County intentionally and unlawfully touched the vagina of J.M.G a child aged 15 years with his penis.
- The appellant was convicted on the main charge and sentenced to serve twenty (20) years imprisonment.
- Being dissatisfied with the said judgement the appellant lodged an appeal with grounds as follows:
- That the learned trial magistrate erred in law and fact for not observing that the ingredients on the issue of the age lacked a clear prove.
- That the learned magistrate failed to consider the legal requirement in section 200 of the Criminal Procedure Code when she succeeded the case from her predecessors.
- That the learned trial magistrate erred in law and fact for not considering that the circumstances of the case ought consideration along with section 8(5) of the Sexual Offences Act No.3 of 2006.
- That the learned trial magistrate erred in law and fact for not appreciating that section 43 of the Sexual Offences Act No.3 of 2006 ought consideration where the issue of unlawful act would be excluded and invite consent to the act.
- That the learned trial magistrate erred in law and fact for not considering the conviction and sentence was against the weight of evidence and on wrong principle of law.
- I have considered the appeal and submissions. I have also read the record of the trial court and the impugned judgment. As a first appellate court, this court is obligated to revisit and re-evaluate the evidence afresh, assess the same and make its own conclusions bearing in mind that the trial court had the advantage of hearing and observing the demeanor of the witnesses. See Okeno vs. Republic [1972] E.A 32.
- The issues that arises for determination in this appeal
- whether the prosecution proved its case to the desired threshold on the basis of the elements of the offence of defilement.
- whether the trial court failed to comply with section 200 of the Criminal Procedure Code and if so, the effect thereof.
The appellant was charged with the offence of defilement contrary to Section 8 (1) as read with Section 8 (3) 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(4) “A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.”
8. 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:
1) Age of the complainant;
2) Proof of penetration in accordance with section 2(1) of the Sexual Offences Act; and
3) Positive identification of the assailant.
9. See the case of Charles Wamukoya Karani Vs. Republic, Criminal Appeal No. 72 of 2013 where it was stated that:
“The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.”
Age of the complainant
10. In a charge of defilement, the age of the victim is important for two reasons: i) defilement is a sexual offence against a child; and ii) age of the child has also been used as an aggravating factor for purposes of determining the sentence to be imposed; the younger the child the more severe the sentence.
11. A child is defined as a person under the age of eighteen years. Is the victim herein a child"
The appellant argued that the age of the victim was not proved and it was wrong for the court to only rely on the immunization certificate that was presented by PW2, the victim’s father.
PW2 testified that the victim was 17 years old and that she was born on 20/11/2023.He stated that he was yet to obtain the child’s birth certificate but that the immunization certificate indicates her date of birth.
12. On this question of age, I am content to cite the case of Fappyton Mutuku Ngui vs. 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.
This is a borderline case. The victim apparently dropped out of school in standard 7 sometimes in year 2018 as per the evidence on record. No other evidence was given to corroborate the age of the victim or validity of the information on the immunization certificate by way of any other formal document.
The trial court seemed to shift the burden to the accused by stating as follows:
“The accused person did not avail any evidence to challenge the age of the complainant. I find that that she is a child, as provided under the Children Act.”
The truth of the matter is that there was no proof of age.
Penetration
13. 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.”
In the case of Mark Oiruri Mose v R [2013] eKLR the Court of Appeal stated that:
“Many times, the attacker does not fully complete the sexual act during commission of the offence. That is the main reason why the law does not require that evidence of spermatozoa be availed. So long as there is penetration whether only on the surface, the ingredient of the offence is demonstrated, and penetration need not be deep inside the girl’s organ.”
PW3, Dr.Abdulaziz Mohamed examined the complainant. His evidence was to the effect that there was no observation seen save for an old broken hymen.
The complainant gave had given birth and according to her the accused was the father of her child arising from the many sexual escapades narrated by her in court. The evidence of PW5, Mwidadi Omar, a government analyst who carried out a DNA test, was that the accused was not the biological father of the child given birth.
From the above one can safely conclude that there was no evidence of penetration to rely on other than the narration of the complainant which cannot be corroborated any medical evidence.
14. Section 200 CPC, Cap.75
The succeeding magistrate must inform the accused person of their right to have witnesses re-summoned and reheard.
The Section gives an accused person an opportunity to demand to have any witnesses recalled. The Section makes it mandatory for succeeding Magistrate to inform the accused person of his right to have any of the witness recalled for cross examination or to testify again. It is not mandatory to recall the witnesses for either cross-examination or to give evidence as far as this section is concerned with but it is mandatory to explain the accused his rights, the failure to inform the accused of his rights under that Section renders the subsequent proceedings a nullity.
This was not complied with .
The court has the option of ordering a re trial when there is such a lapse, but in this particular case, there were too many other gaps that cannot be filed without causing undue prejudice to the Appellant.
After having analyzed all the evidence and the proceedings a re trial cannot breath any oxygen to this case. The Appellant raises the issue that the complainant was not a minor and did not look like a minor even by her conduct and mode of dressing. Her age was not sufficiently proved and it appears she was not an honest witness. The DNA test in particular exonerated the applicant and this casts some doubt on the credibility of the complainant. The degree of proof remains beyond reasonable doubt
Accordingly I find that none of the 3 ingredients of defilement were not proved to the expected standard and accordingly the appeal on both the conviction and the Sentence succed. The conviction is quashed and he is acquitted of the main charge and the sentence of 20 years set aside.
The Appellant may be set at liberty forthwith unless if otherwise lawfully held.
It is so ordered.
DATED SIGNED AND DELIVERED VIRTUALY THIS 14TH DAY OF MARCH 2025
WENDY KAGENDO
IN THE PRESENCE OF
MISS CHEROP FOR THE STATE
MS BEBORA COURT ASSISTANT
APPELLANT IN PERSON