(Being an appeal from the original conviction and sentence of Hon. Sandra Ogot PM, in Msambweni Magistrates Court Sexual Offence (SO) Case No. E057 of 2022 delivered on 25/10/2023)
J U D G M E N T
1. The appellant, Benson Wambua Mutunga was convicted of the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act (Cap. 63A) Laws of Kenya (SoA) that on diverse dates between 1/1/2021 to 9/11/2023 at unknown time at Kidiani village in Mivumoni location of Kwale County within Coast region intentionally and unlawfully caused his penis to penetrate the vagina of F.N.M a girl aged 14 years.
2. An alternative count of committing an indecent act with a child contrary to section 11(1) of the SoA was also read to him but the name of the accused was indicated as Mohamed Hamisi Fundi that on the same day, place and time as in the principal charge he intentionally and unlawfully touched the vagina of the same child with his penis.
3. The appellant pleaded not guilty to the charges and the case proceeded for hearing. The appellant is hard of speech. This came to light after the complainant had testified during the time for cross-examination and so the court made available a pro bono advocate for him at that stage.
4. The prosecution called 6 witnesses in support of its case. PW 1, F.N.M. was the complainant. She said the appellant had sexual intercourse with her on various occasions between 4/1/2021 and November, 2022 when she made the report that led to the present case. PW 2, A.M, the complainant’s aunt and a member of the local village security vigilante group in charge of the complainant’s household was the one to whom the complainant reported the incidents two times. PW 3, Saidi Shee Mmaghikoi works with PLAN International, the sponsors of the complainant in school. PW 2 reported the complainant’s issue to her. She assisted in taking action on the report by the complainant by taking up the matter with the police. PW 4, Dr. Saumu Shee of Msambweni hospital produced the P3 form completed by her colleague Gitau, a clinical officer who attended to and examined the complainant at the hospital on 15/11/2022. PW 5, Cpl Wilson Tarus of Mivumoni police post was the investigating officer in the case. PW 6, PC John Kisika of Mivumoni police post assisted in the arrest of the appellant.
5. The appellant DW 1, made a written unsworn statement in defence in Kiswahili due to his challenges of speech. He did not call a witness. He denied that he committed the offence.
6. At the end of the trial, the appellant was found guilty of the principal charge of defilement and he was convicted and sentenced to serve 20 years imprisonment.
7. The appellant was aggrieved by the decision of the trial court and has challenged the decision based on the following undated amended grounds of appeal filed in court on 30/8/2024:
a. The charge is defective.
b. That the learned trial magistrate erred in law and in fact in convicting the appellant in a case replete with contradictions and inconsistencies.
c. That the learned trial magistrate erred in law and in fact by failing to find that the witnesses were incredible.
d. That the learned trial magistrate erred in law and in fact by convicting and sentencing the appellant yet penetration, a key ingredient of the offence was not proved.
e. That the learned trial magistrate erred in law and in fact by convicting and sentencing the appellant yet the medical evidence relied upon was questionable and unprocedurally before the court hence inadmissible.
f. That crucial witnesses were not brought to court.
g. That the learned trial magistrate erred in law and in fact by convicting and sentencing the appellant on uncorroborated evidence of a single witness.
h. That the sentence is harsh and excessive.
8. The appeal was disposed of by way of written submissions filed by both the appellant and the respondent.
9. This being a first appeal, the court is required to analyze and re-evaluate afresh all the evidence and to draw its own conclusion while bearing in mind that it neither saw nor heard any of the witnesses as per the holding of the Court of Appeal in Okeno versus Republic (1972) EA 32 that;
“… it is the duty of a first appellate court to reconsider the evidence, evaluate it itself and draw its own conclusions in deciding whether the judgment of the trial court should be upheld.”
10. This position is recounted variously in other decisions for instance in Njoroge v Republic (1987) KLR 19.
11. Sections 8(1) and 8(3) of the SoA under which the appellant was convicted provide as follows:
S. 8:
(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(2) …
(3) 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.
12. The Court of Appeal, while considering this section in the case of Shitula v Republic [2025] KECA 12 (KLR) set out the main ingredients of the offence of defilement to be as follows:
i. proof that the victim is a minor;
ii. penetration of the victim’s genital organs with the genital organs of another person; and
iii. the accused person was the person who penetrated the victim’s genital organs.
13. I have examined and reviewed the evidence tendered before the trial court.
14. PW 1, the complainant was the only prosecution witness to the alleged offence. Her evidence which was straightforward was that the appellant, who was well known to her was taking advantage of her and engaging in sexual intercourse with her. He had done so, first on 4/1/2021. Her grandmother with whom she was staying had sent her to go collect charcoal from the appellant. The appellant sent her into the store which is inside the house to pick the charcoal. He followed her there, closed the sitting room door, took her by the hands and dragged her from the store into his bedroom also inside the house and engaged in sexual intercourse with her. Once he was done, he let her pick the charcoal and she went home. She informed her aunt, PW 2 about the incident the following day.
15. On the second occasion, she met the appellant at around noon. He told her that he wanted to send her to the shop. He asked her to collect money from his house. When she entered the house, he closed the door and engaged in sexual intercourse with her while wearing a condom.
16. On the third occasion, the appellant sent one Faith to go call her. She went to his house. He gave her money to go buy for him floor from Timboni. On her way back, the appellant met her on the way through some bushes. He dragged her into the bushes and had sexual intercourse with her. This was around November 2022. The complainant reported the incident to PW 2 and that is when action was taken against the appellant.
17. She reiterated that the first incident happened on 4/1/2021 after school. The appellant had asked her to go to his place for him to send her to the shops.
18. However, her grandmother with whom she was staying did not want her to pursue the matter. PW 2 is the one who took all the steps to have the complainant taken to make a report to the police and subsequently taken for medical examination.
19. In cross-examination, PW 1 said that the appellant used to work on the farm as well as sell charcoal. For the period she knew him, there was no other man at the farm where the appellant worked.
20. She answered in the affirmative to counsel for the appellant’s question that the third incident took place on 8/10/2022. She said that she had been sent to the shop and from there to pass by the appellant’s home and collect charcoal. She first went to the appellant’s home where her father and brother Makau were, then went to the shop and when she came back to collect the charcoal, the two had left and he was alone with the appellant and that was when the incident happened. That the incident took about 10 minutes or so and that she ran into her brother Makau who had been waiting for her at the gate where the appellant used to work.
21. She said the third incident happened in the evening when she had gone to fetch water but on getting to the river, she realized that they had no jerricans. She then had to go to the other river which is where the appellant lived to pick the jerricans and that was when the incident occurred. She was alone as Faith with whom she had been had gone back to their grandmother. She said that her grandmother knew that she had gone to the river.
22. In further cross-examination, PW 1 said the incidents of defilement happened two times, on 4/1/2021 and 8/10/2022. She denied that she had said they happened three times. She said that on the third occasion, he wanted to defile her but her sister R. who had been sent by their grandmother went to call her.
23. She said she was aware that he stammers in his speech and he would take a long time to speak but he spoke.
24. PW 2, the complainant’s aunt gave evidence that the complainant’s mother is deceased. The complainant was staying with her father and grandmother. She said the complainant reported to her on 25/9/2022 that the appellant was having sex with her. PW 2 forwarded the issue to the village chairman who did not take up any action but told her to look for evidence. The complainant reported the same thing to her again on 6/11/2022. PW 2 reported the matter to PW 3, a children’s officer with PLAN International who were also the complainant’s sponsors in school. She subsequently reported the matter to the police and took the complainant to Msambweni hospital for medical attention.
25. In cross-examination, PW 2 said that the complainant reported to her that she had reported the incidents at home but nobody had given them attention. She said further that a meeting was called by the village chairman where the complainant, her father, grandmother and other people attended and the complainant reiterated that the appellant had defiled her. That the complainant’s father and grandmother said that they had given the complainant to the appellant in order to take care of her. PW 2 said since then, they had issues with her for taking up the complainant’s matter to the authorities.
26. PW 3 confirmed that indeed on 6/11/2022 PW 2 had reported the complaint by the complainant to her. She accompanied them to report the matter to the police.
27. PW 4, Dr. Saumu Shee gave evidence of the complainant’s attendance at Msambweni hospital on 15/11/2022. She was attended to by her colleague, Gitau, a clinical officer whose failure to attend to testify was not explained.
28. PW 4 said that according to the treatment book, the complainant reported to have been defiled at least three times prior to the day she went to hospital on 1/1/2021, then on 4/1/2021 and then on 9/11/2021. On examination her vagina was found to be stable with normal external genitalia and hymen broken with no bruises or lacerations and no discharge. Samples were sent to the laboratory for tests and the positive findings there were spermatozoa seen. Epithelial cells were also seen but PW 4 explained that epithelial cells would be found in any woman of reproductive age who engages in sexual activity. As for the spermatozoa she said that sperms can stay in the body for up to 72 hours but it is a rare possibility for it to have been from the incident of 9/11/2022.
29. In cross-examination, PW 4 said that penetration occurred due to the presence absence of hymen and presence of spermatozoa. However, the act was not recent.
30. PW 5 and PW 6 the investigations and arresting officers did not have much substance to add to what the other witnesses had said.
31. In his defence, the appellant said that he arrived at his work place on 1/5/2021. He made friends with the family of the complainant and they would visit his place of work often. He also supported the family and the complainant’s grandmother liked him and gave him a free hand to relate to the complainant and the other grandchildren save that none of them should get pregnant. Agnes PW 2 cautioned him to stop his relationship with the complainant. The appellant told her off because he had declined her advances towards him.
32. Another neighbor also cautioned him telling him that the complainant’s grandmother had caused a young man called Shadrack to be imprisoned because of the same complainant. It was not long before he was also arrested for this offence.
33. Upon evaluating the evidence, the learned trial magistrate was satisfied that the prosecution had proved the offence of defilement of a child aged 14 years against the appellant beyond a reasonable doubt and thus convicted him of the offence and sentenced him to 20 years imprisonment.
34. I have considered the grounds of appeal preferred by the appellant and his submissions in support thereof. I have also carefully examined and re-evaluated the evidence tendered before the trial court. The issue for determination is whether or not the learned trial magistrate reached a correct finding and whether or not the conviction of the appellant can be sustained on the evidence tendered at the trial.
35. The appellant takes issue with the charge sheet, terming it defective due to variance between the dates indicated therein and the evidence tendered at trial in support of the charge.
36. First, he submits that whereas the charge sheet uses the word “diverse” dates to indicate the time when the alleged defilement was committed, the complainant and other prosecution witnesses were specific on the said dates.
37. Secondly, that the complainant was specific on the first date of the first alleged defilement as 4/1/2021 yet in her evidence she said she came to know the appellant for the first time at the beginning of 2022. This inconsistence, according to the appellant caused the charge to be defective.
38. I have read through the evidence and I do note that there are a number of discrepancies regarding the dates, some as pointed out by the appellant but others not. The context in which the dates were given by the complainant have to be considered. When she said that she had known the appellant for the first time in 2022, she was responding to a question put to her in cross-examination. She first said, “I can’t remember when I first saw him. It’s beginning of 2022 as you have stated. First incident of defilement occurred on 4/1/2021 and the 2nd one on 1/1/2022.” So that in her subsequent answer she maintained that the first defilement occurred on 4/1/2021. That was what she had said in her evidence-in-chief.
39. As for the incident of 1/1/2022, the complainant did not mention this specific date in her evidence in chief. She only spoke of similar incidents happening a second and third time. She however mentioned the dates in cross-examination when the dates were put to her by counsel for the accused person. Although she said that she remembered that date very well as it was New Year’s Day, and that the appellant was the one who asked her to go to his house on that day, she was also clear that he did not defile her that day. She explained that he wanted to do it but her sister R. who had been sent by their grandmother went there and kind of interrupted them.
40. She then said that 4/1/2021 and 8/10/2022 were the two occasions. Again, the date of 8/10/2022 was put to her in cross-examination and she simply agreed that it was the second occasion. She did not mention this date in her evidence-in-chief. In her evidence in chief, she said that she was not sure but the third incident occurred in November 2022. In cross-examination she gave another date of 29th but said she could not remember the month.
41. From this evidence, it is apparent that the complainant could not clearly remember the dates when the subsequent incidents occurred apart from 4/1/2021, the first incident. It is however clear from her evidence that there was more than one incident.
42. Evidence that the incidents were more than one is supported by PW 2 who said that the complainant reported to her the first incident. She in turn reported to the village chairman who asked PW 2 to look for evidence. The complainant again reported to her on 6/11/2022 about the appellant hurting her sexually. That was when action was taken.
43. Section 214(2) of the Criminal Procedure Code (Cap. 75) Laws of Kenya (CPC) provides that variance between a charge and the evidence adduced with respect to the time the alleged offence was committed is not material as follows:
Section 214
(1) …
(2) Variance between the charge and the evidence adduced in support of it with respect to the time at which the alleged offence was committed is not material and the charge need not be amended for the variance if it is proved that the proceedings were in fact instituted within the time (if any) limited by law for the institution thereof.
44. Therefore, the issue of the inconsistencies on the dates the alleged defilements took place in the evidence of the prosecution witnesses and the charge sheet is not material as to vitiate the conviction.
45. On the issue of the words “diverse” dates used in the charge sheet and specific dates given by witnesses it falls under the same issue of variance between particulars of the charge with respect to the date of the alleged offence and the evidence tendered by witnesses as explained above.
46. Even then, the plain meaning of the word diverse is “many or various.” The complainant’s evidence herein is that the incidents happened on more than one occasion or various dates. That is why the charge sheet was not specific on the dates and indicated them as diverse. In this case, evidence of the exact date on which the incidents took place is not material. What was required was proof that indeed there was penetration of the complainant’s genital organ, a child, by the appellant’s genital organ. In fact, proof of a single incident on any of the given dates would be sufficient to establish the charge. The prosecution does not need to prove each and every one of those alleged incidents.
47. Therefore, the submission that the charge sheet was defective has no force on the propriety of the charges and the same is dismissed.
48. I will now consider the credibility of the evidence tendered to prove the prosecution’s case, seeing that the complainant was the only witness to the alleged incidents of defilement.
49. It is the appellant’s evidence that the contradictions and inconsistencies he has pointed out makes the prosecution’s case incredible. The appellant has sought to assail the complainant’s evidence, submitting that she it was not credible and could not be relied upon.
50. The complainant was the only witness to testify that the appellant caused penetration of her sexual organ with his sexual organ.
51. The manner in which the court should assess the evidence of a victim in a sexual offence case where the victim is the only witness on any of the ingredients of the offence is provided for under the proviso to section 124 of the Evidence Act (Cap. 80) Laws of Kenya as follows:
S. 124. Evidence Act:
“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material 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 offence, 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.”
52. The law as indicated above is that the evidence of a victim is sufficient where the court determines the victim is telling the truth and that reasons for such belief are recorded. This is different from what the learned trial magistrate thought was the case that the evidence should be considered as that of a single identifying witness and that courts should be cautious to base a conviction on testimony and identification of a single witness. The evidence tendered herein did not call for such a consideration.
53. The manner in which to proceed to evaluate the evidence of a victim of a sexual offence as provided for under the above provisions of the law was explained by the Court of Appeal in the case of Sahali Omar vs. Republic [2017] eKLR held that:
“On the first issue, the appellant took issue with lack of corroboration of the complainants’ evidence, which he said ran afoul of section 124 of the Evidence Act…The import of that provision is that ideally, the evidence of a child of tender years in criminal proceedings should always be corroborated; notwithstanding the voir dire examination of the child under section 19 of the Oaths and Statutory Declarations Act. In short, that even though the court is satisfied that the child is competent to tell the truth, their testimony should nonetheless be corroborated by independent evidence. However, the section also allows for an exception. Under the proviso thereto, the court is allowed to solely rely on the evidence of a child of tender years if the child is the victim, provided the court first satisfies itself on reasons to be recorded, that the child is being truthful…It is a well-established rule of law that the unsworn testimony of a child of tender years must be corroborated. However, where a child of tender years gives sworn testimony or is affirmed, corroboration is unnecessary. (See. Patrick Kathurima v. R (supra) and Johnson Muiruri v. Republic, (1983) KLR 445 and also John Otieno Oloo v. Republic [2009] eKLR)…In addition, the proviso to section 124 of the Evidence Act affords an exception to this general rule in cases of sexual assault where the child in question is not only the sole witness but also the alleged victim. So that as far as PW1 was concerned, even though neither PWs 2, 3, 4 or even 5 (the medical practitioner) could directly support her testimony, the court could nonetheless rely on it provided it recorded its reasons.”
54. The issue of reliance on the evidence of a victim when there is lack of corroboration of the victim’s evidence in a sexual offence, has been further explained by the High Court (Odunga, J. as he then was) in the case of Moses Mutahi Mugo v Republic [2022] eKLR. Upon considering various decisions on the matter the learned Judge said thus:
“…where the trial court is satisfied that the complainant is speaking nothing but the whole truth, the court may convict without corroboration. What is required of the trial court is to be satisfied that the victim is telling the truth. In such a situation however, the court must warn itself of the danger of basing a conviction upon uncorroborated evidence of the complainant. The fact of the warning must appear in the judgement of the trial court and the record itself must show that the trial court was so satisfied…”
55. From these decisions it emerges that the court is enjoined to evaluate the evidence and determine whether there was corroboration and if there is none whether the court believed that the complainant was telling the truth. In determining the second issue of truthfulness the trial court has to make it expressly clear in the proceedings that the complainant was telling the truth and if so that in the judgment the court warned itself of the danger of relying upon uncorroborated evidence of the complainant.
56. The complainant and the appellant were well known to each other and there is no dispute about that.
57. On the question of proof of age, the Court of Appeal had this to say in the case of Mwalango Chichoro Mwanjembe v Republic [2016] eKLR:
“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 documentary 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 presented in proof of the victim’s age, it has to be credible and reliable.
58. From the above decisions, what the court needs to be satisfied on proof of age is that the evidence is credible and reliable. In the present case, the learned trial magistrate relied on the evidence of the complainant that she was born on 27/8/2008 and the age assessment report which showed that she was 14 years old. I am satisfied as the learned trial magistrate was that there was credible evidence that the complainant was a child as provided for under section 8(1) of the SoA.
59. The elements of penetration and identification of the culprit go hand in hand and I will consider them together.
60. The appellant takes issue with the alternative charge indicating the name of the culprit as Mohamed Hamisi Fundi. He submits that this should be the culprit and not him. He supports his submission with the medical evidence which showed that there were spermatozoa found in the complainant’s genitalia, yet according to the doctor, the same would not have been possible to be found after over 72 hours had elapsed since the last alleged act of sexual intercourse between the complainant and the appellant some six days before the time of examination. I think that was a copy-and-paste error and since the conviction was not based thereon, I find that nothing in this appeal turns on the same.
61. Although the learned trial magistrate found corroboration of penetration in the medical evidence tendered before the court, I find that she was in error for two reasons. First, there was no explanation offered why Gitau, the clinical officer who examined the complainant and completed the P3 form could not be made available to testify. Therefore, it was not shown that the maker of the P3 form was not available as per the provision of Section 33 Evidence Act (Cap. 80) Laws of Kenya.
62. Secondly, the evidence by PW 3 that spermatozoa were found in the complainant’s genitalia on 15/11/2022 when the date of the last defilement was not clear required clarification. The evidence that the complaint reported to PW 2 on 6/11/2022 means that the latest defilement could only have taken place not earlier than this date. I have found above that the complainant was not very clear on the dates the defilements took place, including the last date. The medical evidence was that she was examined on 15/11/2022. The best person to have clarified this discrepancy was Gitau, who had examined her yet she was not made available to testify and without explanation. In that case, the conclusion I reach is that the medical evidence tendered did not corroborate the complainant’s evidence of penetration by the appellant.
63. However, it is not a must that medical evidence be adduced in order to prove a charge of defilement. As indicated above, it is sufficient if the court is satisfied that the victim is telling the truth (see the case of Arthur Mshila Manga v Republic (2016) eKLR).
64. The appellant pointed out several issues as inconsistencies and contradictions in the prosecution’s case. He thus submits that due to the same the complainant cannot be considered a witness of truth. I have dealt with each of those issues above as submitted. In the case of Richard Munene v R [2018] eKLR, the court while considering the effect of inconsistencies and contradictions in a case said:
‘it is a settled principle of law however that it is not every trifling contradiction or inconsistency in the evidence of the prosecution witness that will be fatal to its case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question and thus necessary creates doubts in the mind of the trial court that an accused person will be entitled to benefit from it.’
65. In Philip Nzaka Watu v Republic (supra) the Court of Appeal considering the issue of inconsistencies and discrepancies in evidence said thus:
“The first question in this appeal is whether the prosecution case was riddled with contradictions and inconsistencies of the magnitude that would make the conviction of the appellant unsafe. It cannot be gainsaid that to found a conviction in a criminal case, where the trial court has to be satisfied of the accused person’s guilt beyond reasonable doubt, the prosecution evidence must be cogent, credible and trustworthy. Evidence that is obviously self-contradictory in material particulars or which is a mere amalgam of inconsistent versions of the same event, differing fundamentally from one purported eyewitness to another, cannot give the assurance that a court needs to be satisfied beyond reasonable doubt.
However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed as has been recognised in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question.”
66. The complainant herein said that the appellant engaged in sexual intercourse with her on several occasions, almost at will. The first time she made a report to PW 2, her aunt about it, no action was taken as the village chairman asked PW 2 for more evidence. The complainant went back to PW 2, and made another report. According to PW 2, in one instance, the issue was discussed in an open forum and the complainant repeated her assertions against the appellant. The appellant’s response was that the complainant had been given to him by his father and grandmother and he did not want anybody else interfering with her.
67. Indeed, the appellant said in his defence that the complainant’s grandmother had handed over her grandchildren, the complainant among them, to take care of them. Therefore, the assertion by the complainant to PW 2, then at the public forum where the appellant was present and confirmed that the complainant was at his disposal and her evidence in court that the appellant was misusing her sexually was consistent.
68. I am inclined to believe and I find that this conduct by the appellant, conceding that the complainant was at his disposal, supports the complainant’s evidence that the appellant was abusing her sexually. It was for the reason that he was aware that her father and grandmother would not take any adverse action against him as they appeared to be complicit in the issue and could not help her out. That is why he could go on with those acts of sexual abuse against the complainant with abandon.
69. Equally, the appellant’s argument that if indeed the complainant was married off to him, they would be staying together bears no weight. It is quite unfortunate that the complainant’s father and grandmother, would be complicit in such a scheme. But that cannot be blamed upon the complainant. Knowing that they were complicit, she made her report to PW 2 who eventually took action to assist her.
70. From the foregoing consideration, I am satisfied that the complainant was a witness of truth and what she stated was what she witnessed by experience. I find from her evidence that the appellant had sexual intercourse with her at will as he was confident that her father and grandmother would not take any adverse action against him. Those are the people the appellant says should have been made available as prosecution witnesses. I do not think so. I find that their attendance would not have added any value either to the prosecution or the defence case.
71. I also find that the inconsistencies in the complainant’s evidence, being mostly on the time the incidents occurred do not imply that she was being dishonest. I find that they are out of her inability to properly recall the dates of the incidents, considering the long-time lapse in some of them seeing that they were several.
72. I am satisfied that the complainant was an honest and truthful witness. Her conduct of reporting the incidents to PW 2 showed that this was a matter that was vexing her yet her father and grandmother were not giving her any assistance. They seemed complicit in the matter by claiming to have given the complainant to the appellant as stated by PW 2 and the appellant himself.
73. I have considered the defence tendered by the appellant. It was a denial that he had committed the offence. Although he alleged that the he was framed up by the complainant’s grandmother, the same was not correct, seeing from the evidence herein that in fact he was on very good terms with her and she was complicit in his acts of sexual molestation of the complainant. I find that the trial magistrate was correct in dismissing it as incapable of challenging the evidence of the complainant. The learned magistrate was therefore not in error.
74. I therefore find and uphold the learned trial magistrate’s finding that there was penetration of the complainant’s genital organ by the appellant who was properly identified as the culprit.
75. Consequently, I am satisfied that the appellant was correctly convicted and I affirm the trial court’s conviction on the offence of defilement of a child contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act (Cap. 63A) Laws of Kenya. The appeal on conviction is therefore dismissed.
76. The final ground raised by the appellant was on sentence. The appellant submits that the sentence imposed was harsh and excessive and went against all the principles of sentencing. It is his submission that he ought to have been given a lesser sentence as imposition of mandatory sentences causes great injustice. He supports his submissions with several decisions from the Court of Appeal and other jurisdictions outside Kenya on the unfairness of mandatory and minimum sentences and the need for the court to consider the circumstances of each case and exercise discretion when sentencing.
77. The appellant’s submission on mandatory and minimum sentences and the jurisprudence he has cited thereon from the Court of Appeal has been overtaken by events in view of the recent Supreme Court decision in the case of Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR) where it was held that minimum sentences under the Sexual Offences Act are not unconstitutional.
78. The learned trial magistrate correctly imposed the minimum sentence for defilement of a child of 14 years under section 8(3) of the Sexual Offences Act and this court has no jurisdiction to interfere with the same. The appeal on sentence is equally dismissed.
79. In the result, the entire appeal is found to be without merit and is dismissed.
80. Orders accordingly.
81. Right of appeal in 14 days.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual platform Teams this 4th day of March 2025 in the presence of:
The appellant in person at Shimo La Tewa prison.
Ms Valerie h/b for Ngiri for the respondent.
Johnson h/b for Etropia court assistant.
J U D G M E N T
1. The appellant, Benson Wambua Mutunga was convicted of the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act (Cap. 63A) Laws of Kenya (SoA) that on diverse dates between 1/1/2021 to 9/11/2023 at unknown time at Kidiani village in Mivumoni location of Kwale County within Coast region intentionally and unlawfully caused his penis to penetrate the vagina of F.N.M a girl aged 14 years.
2. An alternative count of committing an indecent act with a child contrary to section 11(1) of the SoA was also read to him but the name of the accused was indicated as Mohamed Hamisi Fundi that on the same day, place and time as in the principal charge he intentionally and unlawfully touched the vagina of the same child with his penis.
3. The appellant pleaded not guilty to the charges and the case proceeded for hearing. The appellant is hard of speech. This came to light after the complainant had testified during the time for cross-examination and so the court made available a pro bono advocate for him at that stage.
4. The prosecution called 6 witnesses in support of its case. PW 1, F.N.M. was the complainant. She said the appellant had sexual intercourse with her on various occasions between 4/1/2021 and November, 2022 when she made the report that led to the present case. PW 2, A.M, the complainant’s aunt and a member of the local village security vigilante group in charge of the complainant’s household was the one to whom the complainant reported the incidents two times. PW 3, Saidi Shee Mmaghikoi works with PLAN International, the sponsors of the complainant in school. PW 2 reported the complainant’s issue to her. She assisted in taking action on the report by the complainant by taking up the matter with the police. PW 4, Dr. Saumu Shee of Msambweni hospital produced the P3 form completed by her colleague Gitau, a clinical officer who attended to and examined the complainant at the hospital on 15/11/2022. PW 5, Cpl Wilson Tarus of Mivumoni police post was the investigating officer in the case. PW 6, PC John Kisika of Mivumoni police post assisted in the arrest of the appellant.
5. The appellant DW 1, made a written unsworn statement in defence in Kiswahili due to his challenges of speech. He did not call a witness. He denied that he committed the offence.
6. At the end of the trial, the appellant was found guilty of the principal charge of defilement and he was convicted and sentenced to serve 20 years imprisonment.
7. The appellant was aggrieved by the decision of the trial court and has challenged the decision based on the following undated amended grounds of appeal filed in court on 30/8/2024:
a. The charge is defective.
b. That the learned trial magistrate erred in law and in fact in convicting the appellant in a case replete with contradictions and inconsistencies.
c. That the learned trial magistrate erred in law and in fact by failing to find that the witnesses were incredible.
d. That the learned trial magistrate erred in law and in fact by convicting and sentencing the appellant yet penetration, a key ingredient of the offence was not proved.
e. That the learned trial magistrate erred in law and in fact by convicting and sentencing the appellant yet the medical evidence relied upon was questionable and unprocedurally before the court hence inadmissible.
f. That crucial witnesses were not brought to court.
g. That the learned trial magistrate erred in law and in fact by convicting and sentencing the appellant on uncorroborated evidence of a single witness.
h. That the sentence is harsh and excessive.
8. The appeal was disposed of by way of written submissions filed by both the appellant and the respondent.
9. This being a first appeal, the court is required to analyze and re-evaluate afresh all the evidence and to draw its own conclusion while bearing in mind that it neither saw nor heard any of the witnesses as per the holding of the Court of Appeal in Okeno versus Republic (1972) EA 32 that;
“… it is the duty of a first appellate court to reconsider the evidence, evaluate it itself and draw its own conclusions in deciding whether the judgment of the trial court should be upheld.”
10. This position is recounted variously in other decisions for instance in Njoroge v Republic (1987) KLR 19.
11. Sections 8(1) and 8(3) of the SoA under which the appellant was convicted provide as follows:
S. 8:
(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(2) …
(3) 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.
12. The Court of Appeal, while considering this section in the case of Shitula v Republic [2025] KECA 12 (KLR) set out the main ingredients of the offence of defilement to be as follows:
i. proof that the victim is a minor;
ii. penetration of the victim’s genital organs with the genital organs of another person; and
iii. the accused person was the person who penetrated the victim’s genital organs.
13. I have examined and reviewed the evidence tendered before the trial court.
14. PW 1, the complainant was the only prosecution witness to the alleged offence. Her evidence which was straightforward was that the appellant, who was well known to her was taking advantage of her and engaging in sexual intercourse with her. He had done so, first on 4/1/2021. Her grandmother with whom she was staying had sent her to go collect charcoal from the appellant. The appellant sent her into the store which is inside the house to pick the charcoal. He followed her there, closed the sitting room door, took her by the hands and dragged her from the store into his bedroom also inside the house and engaged in sexual intercourse with her. Once he was done, he let her pick the charcoal and she went home. She informed her aunt, PW 2 about the incident the following day.
15. On the second occasion, she met the appellant at around noon. He told her that he wanted to send her to the shop. He asked her to collect money from his house. When she entered the house, he closed the door and engaged in sexual intercourse with her while wearing a condom.
16. On the third occasion, the appellant sent one Faith to go call her. She went to his house. He gave her money to go buy for him floor from Timboni. On her way back, the appellant met her on the way through some bushes. He dragged her into the bushes and had sexual intercourse with her. This was around November 2022. The complainant reported the incident to PW 2 and that is when action was taken against the appellant.
17. She reiterated that the first incident happened on 4/1/2021 after school. The appellant had asked her to go to his place for him to send her to the shops.
18. However, her grandmother with whom she was staying did not want her to pursue the matter. PW 2 is the one who took all the steps to have the complainant taken to make a report to the police and subsequently taken for medical examination.
19. In cross-examination, PW 1 said that the appellant used to work on the farm as well as sell charcoal. For the period she knew him, there was no other man at the farm where the appellant worked.
20. She answered in the affirmative to counsel for the appellant’s question that the third incident took place on 8/10/2022. She said that she had been sent to the shop and from there to pass by the appellant’s home and collect charcoal. She first went to the appellant’s home where her father and brother Makau were, then went to the shop and when she came back to collect the charcoal, the two had left and he was alone with the appellant and that was when the incident happened. That the incident took about 10 minutes or so and that she ran into her brother Makau who had been waiting for her at the gate where the appellant used to work.
21. She said the third incident happened in the evening when she had gone to fetch water but on getting to the river, she realized that they had no jerricans. She then had to go to the other river which is where the appellant lived to pick the jerricans and that was when the incident occurred. She was alone as Faith with whom she had been had gone back to their grandmother. She said that her grandmother knew that she had gone to the river.
22. In further cross-examination, PW 1 said the incidents of defilement happened two times, on 4/1/2021 and 8/10/2022. She denied that she had said they happened three times. She said that on the third occasion, he wanted to defile her but her sister R. who had been sent by their grandmother went to call her.
23. She said she was aware that he stammers in his speech and he would take a long time to speak but he spoke.
24. PW 2, the complainant’s aunt gave evidence that the complainant’s mother is deceased. The complainant was staying with her father and grandmother. She said the complainant reported to her on 25/9/2022 that the appellant was having sex with her. PW 2 forwarded the issue to the village chairman who did not take up any action but told her to look for evidence. The complainant reported the same thing to her again on 6/11/2022. PW 2 reported the matter to PW 3, a children’s officer with PLAN International who were also the complainant’s sponsors in school. She subsequently reported the matter to the police and took the complainant to Msambweni hospital for medical attention.
25. In cross-examination, PW 2 said that the complainant reported to her that she had reported the incidents at home but nobody had given them attention. She said further that a meeting was called by the village chairman where the complainant, her father, grandmother and other people attended and the complainant reiterated that the appellant had defiled her. That the complainant’s father and grandmother said that they had given the complainant to the appellant in order to take care of her. PW 2 said since then, they had issues with her for taking up the complainant’s matter to the authorities.
26. PW 3 confirmed that indeed on 6/11/2022 PW 2 had reported the complaint by the complainant to her. She accompanied them to report the matter to the police.
27. PW 4, Dr. Saumu Shee gave evidence of the complainant’s attendance at Msambweni hospital on 15/11/2022. She was attended to by her colleague, Gitau, a clinical officer whose failure to attend to testify was not explained.
28. PW 4 said that according to the treatment book, the complainant reported to have been defiled at least three times prior to the day she went to hospital on 1/1/2021, then on 4/1/2021 and then on 9/11/2021. On examination her vagina was found to be stable with normal external genitalia and hymen broken with no bruises or lacerations and no discharge. Samples were sent to the laboratory for tests and the positive findings there were spermatozoa seen. Epithelial cells were also seen but PW 4 explained that epithelial cells would be found in any woman of reproductive age who engages in sexual activity. As for the spermatozoa she said that sperms can stay in the body for up to 72 hours but it is a rare possibility for it to have been from the incident of 9/11/2022.
29. In cross-examination, PW 4 said that penetration occurred due to the presence absence of hymen and presence of spermatozoa. However, the act was not recent.
30. PW 5 and PW 6 the investigations and arresting officers did not have much substance to add to what the other witnesses had said.
31. In his defence, the appellant said that he arrived at his work place on 1/5/2021. He made friends with the family of the complainant and they would visit his place of work often. He also supported the family and the complainant’s grandmother liked him and gave him a free hand to relate to the complainant and the other grandchildren save that none of them should get pregnant. Agnes PW 2 cautioned him to stop his relationship with the complainant. The appellant told her off because he had declined her advances towards him.
32. Another neighbor also cautioned him telling him that the complainant’s grandmother had caused a young man called Shadrack to be imprisoned because of the same complainant. It was not long before he was also arrested for this offence.
33. Upon evaluating the evidence, the learned trial magistrate was satisfied that the prosecution had proved the offence of defilement of a child aged 14 years against the appellant beyond a reasonable doubt and thus convicted him of the offence and sentenced him to 20 years imprisonment.
34. I have considered the grounds of appeal preferred by the appellant and his submissions in support thereof. I have also carefully examined and re-evaluated the evidence tendered before the trial court. The issue for determination is whether or not the learned trial magistrate reached a correct finding and whether or not the conviction of the appellant can be sustained on the evidence tendered at the trial.
35. The appellant takes issue with the charge sheet, terming it defective due to variance between the dates indicated therein and the evidence tendered at trial in support of the charge.
36. First, he submits that whereas the charge sheet uses the word “diverse” dates to indicate the time when the alleged defilement was committed, the complainant and other prosecution witnesses were specific on the said dates.
37. Secondly, that the complainant was specific on the first date of the first alleged defilement as 4/1/2021 yet in her evidence she said she came to know the appellant for the first time at the beginning of 2022. This inconsistence, according to the appellant caused the charge to be defective.
38. I have read through the evidence and I do note that there are a number of discrepancies regarding the dates, some as pointed out by the appellant but others not. The context in which the dates were given by the complainant have to be considered. When she said that she had known the appellant for the first time in 2022, she was responding to a question put to her in cross-examination. She first said, “I can’t remember when I first saw him. It’s beginning of 2022 as you have stated. First incident of defilement occurred on 4/1/2021 and the 2nd one on 1/1/2022.” So that in her subsequent answer she maintained that the first defilement occurred on 4/1/2021. That was what she had said in her evidence-in-chief.
39. As for the incident of 1/1/2022, the complainant did not mention this specific date in her evidence in chief. She only spoke of similar incidents happening a second and third time. She however mentioned the dates in cross-examination when the dates were put to her by counsel for the accused person. Although she said that she remembered that date very well as it was New Year’s Day, and that the appellant was the one who asked her to go to his house on that day, she was also clear that he did not defile her that day. She explained that he wanted to do it but her sister R. who had been sent by their grandmother went there and kind of interrupted them.
40. She then said that 4/1/2021 and 8/10/2022 were the two occasions. Again, the date of 8/10/2022 was put to her in cross-examination and she simply agreed that it was the second occasion. She did not mention this date in her evidence-in-chief. In her evidence in chief, she said that she was not sure but the third incident occurred in November 2022. In cross-examination she gave another date of 29th but said she could not remember the month.
41. From this evidence, it is apparent that the complainant could not clearly remember the dates when the subsequent incidents occurred apart from 4/1/2021, the first incident. It is however clear from her evidence that there was more than one incident.
42. Evidence that the incidents were more than one is supported by PW 2 who said that the complainant reported to her the first incident. She in turn reported to the village chairman who asked PW 2 to look for evidence. The complainant again reported to her on 6/11/2022 about the appellant hurting her sexually. That was when action was taken.
43. Section 214(2) of the Criminal Procedure Code (Cap. 75) Laws of Kenya (CPC) provides that variance between a charge and the evidence adduced with respect to the time the alleged offence was committed is not material as follows:
Section 214
(1) …
(2) Variance between the charge and the evidence adduced in support of it with respect to the time at which the alleged offence was committed is not material and the charge need not be amended for the variance if it is proved that the proceedings were in fact instituted within the time (if any) limited by law for the institution thereof.
44. Therefore, the issue of the inconsistencies on the dates the alleged defilements took place in the evidence of the prosecution witnesses and the charge sheet is not material as to vitiate the conviction.
45. On the issue of the words “diverse” dates used in the charge sheet and specific dates given by witnesses it falls under the same issue of variance between particulars of the charge with respect to the date of the alleged offence and the evidence tendered by witnesses as explained above.
46. Even then, the plain meaning of the word diverse is “many or various.” The complainant’s evidence herein is that the incidents happened on more than one occasion or various dates. That is why the charge sheet was not specific on the dates and indicated them as diverse. In this case, evidence of the exact date on which the incidents took place is not material. What was required was proof that indeed there was penetration of the complainant’s genital organ, a child, by the appellant’s genital organ. In fact, proof of a single incident on any of the given dates would be sufficient to establish the charge. The prosecution does not need to prove each and every one of those alleged incidents.
47. Therefore, the submission that the charge sheet was defective has no force on the propriety of the charges and the same is dismissed.
48. I will now consider the credibility of the evidence tendered to prove the prosecution’s case, seeing that the complainant was the only witness to the alleged incidents of defilement.
49. It is the appellant’s evidence that the contradictions and inconsistencies he has pointed out makes the prosecution’s case incredible. The appellant has sought to assail the complainant’s evidence, submitting that she it was not credible and could not be relied upon.
50. The complainant was the only witness to testify that the appellant caused penetration of her sexual organ with his sexual organ.
51. The manner in which the court should assess the evidence of a victim in a sexual offence case where the victim is the only witness on any of the ingredients of the offence is provided for under the proviso to section 124 of the Evidence Act (Cap. 80) Laws of Kenya as follows:
S. 124. Evidence Act:
“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material 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 offence, 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.”
52. The law as indicated above is that the evidence of a victim is sufficient where the court determines the victim is telling the truth and that reasons for such belief are recorded. This is different from what the learned trial magistrate thought was the case that the evidence should be considered as that of a single identifying witness and that courts should be cautious to base a conviction on testimony and identification of a single witness. The evidence tendered herein did not call for such a consideration.
53. The manner in which to proceed to evaluate the evidence of a victim of a sexual offence as provided for under the above provisions of the law was explained by the Court of Appeal in the case of Sahali Omar vs. Republic [2017] eKLR held that:
“On the first issue, the appellant took issue with lack of corroboration of the complainants’ evidence, which he said ran afoul of section 124 of the Evidence Act…The import of that provision is that ideally, the evidence of a child of tender years in criminal proceedings should always be corroborated; notwithstanding the voir dire examination of the child under section 19 of the Oaths and Statutory Declarations Act. In short, that even though the court is satisfied that the child is competent to tell the truth, their testimony should nonetheless be corroborated by independent evidence. However, the section also allows for an exception. Under the proviso thereto, the court is allowed to solely rely on the evidence of a child of tender years if the child is the victim, provided the court first satisfies itself on reasons to be recorded, that the child is being truthful…It is a well-established rule of law that the unsworn testimony of a child of tender years must be corroborated. However, where a child of tender years gives sworn testimony or is affirmed, corroboration is unnecessary. (See. Patrick Kathurima v. R (supra) and Johnson Muiruri v. Republic, (1983) KLR 445 and also John Otieno Oloo v. Republic [2009] eKLR)…In addition, the proviso to section 124 of the Evidence Act affords an exception to this general rule in cases of sexual assault where the child in question is not only the sole witness but also the alleged victim. So that as far as PW1 was concerned, even though neither PWs 2, 3, 4 or even 5 (the medical practitioner) could directly support her testimony, the court could nonetheless rely on it provided it recorded its reasons.”
54. The issue of reliance on the evidence of a victim when there is lack of corroboration of the victim’s evidence in a sexual offence, has been further explained by the High Court (Odunga, J. as he then was) in the case of Moses Mutahi Mugo v Republic [2022] eKLR. Upon considering various decisions on the matter the learned Judge said thus:
“…where the trial court is satisfied that the complainant is speaking nothing but the whole truth, the court may convict without corroboration. What is required of the trial court is to be satisfied that the victim is telling the truth. In such a situation however, the court must warn itself of the danger of basing a conviction upon uncorroborated evidence of the complainant. The fact of the warning must appear in the judgement of the trial court and the record itself must show that the trial court was so satisfied…”
55. From these decisions it emerges that the court is enjoined to evaluate the evidence and determine whether there was corroboration and if there is none whether the court believed that the complainant was telling the truth. In determining the second issue of truthfulness the trial court has to make it expressly clear in the proceedings that the complainant was telling the truth and if so that in the judgment the court warned itself of the danger of relying upon uncorroborated evidence of the complainant.
56. The complainant and the appellant were well known to each other and there is no dispute about that.
57. On the question of proof of age, the Court of Appeal had this to say in the case of Mwalango Chichoro Mwanjembe v Republic [2016] eKLR:
“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 documentary 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 presented in proof of the victim’s age, it has to be credible and reliable.
58. From the above decisions, what the court needs to be satisfied on proof of age is that the evidence is credible and reliable. In the present case, the learned trial magistrate relied on the evidence of the complainant that she was born on 27/8/2008 and the age assessment report which showed that she was 14 years old. I am satisfied as the learned trial magistrate was that there was credible evidence that the complainant was a child as provided for under section 8(1) of the SoA.
59. The elements of penetration and identification of the culprit go hand in hand and I will consider them together.
60. The appellant takes issue with the alternative charge indicating the name of the culprit as Mohamed Hamisi Fundi. He submits that this should be the culprit and not him. He supports his submission with the medical evidence which showed that there were spermatozoa found in the complainant’s genitalia, yet according to the doctor, the same would not have been possible to be found after over 72 hours had elapsed since the last alleged act of sexual intercourse between the complainant and the appellant some six days before the time of examination. I think that was a copy-and-paste error and since the conviction was not based thereon, I find that nothing in this appeal turns on the same.
61. Although the learned trial magistrate found corroboration of penetration in the medical evidence tendered before the court, I find that she was in error for two reasons. First, there was no explanation offered why Gitau, the clinical officer who examined the complainant and completed the P3 form could not be made available to testify. Therefore, it was not shown that the maker of the P3 form was not available as per the provision of Section 33 Evidence Act (Cap. 80) Laws of Kenya.
62. Secondly, the evidence by PW 3 that spermatozoa were found in the complainant’s genitalia on 15/11/2022 when the date of the last defilement was not clear required clarification. The evidence that the complaint reported to PW 2 on 6/11/2022 means that the latest defilement could only have taken place not earlier than this date. I have found above that the complainant was not very clear on the dates the defilements took place, including the last date. The medical evidence was that she was examined on 15/11/2022. The best person to have clarified this discrepancy was Gitau, who had examined her yet she was not made available to testify and without explanation. In that case, the conclusion I reach is that the medical evidence tendered did not corroborate the complainant’s evidence of penetration by the appellant.
63. However, it is not a must that medical evidence be adduced in order to prove a charge of defilement. As indicated above, it is sufficient if the court is satisfied that the victim is telling the truth (see the case of Arthur Mshila Manga v Republic (2016) eKLR).
64. The appellant pointed out several issues as inconsistencies and contradictions in the prosecution’s case. He thus submits that due to the same the complainant cannot be considered a witness of truth. I have dealt with each of those issues above as submitted. In the case of Richard Munene v R [2018] eKLR, the court while considering the effect of inconsistencies and contradictions in a case said:
‘it is a settled principle of law however that it is not every trifling contradiction or inconsistency in the evidence of the prosecution witness that will be fatal to its case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question and thus necessary creates doubts in the mind of the trial court that an accused person will be entitled to benefit from it.’
65. In Philip Nzaka Watu v Republic (supra) the Court of Appeal considering the issue of inconsistencies and discrepancies in evidence said thus:
“The first question in this appeal is whether the prosecution case was riddled with contradictions and inconsistencies of the magnitude that would make the conviction of the appellant unsafe. It cannot be gainsaid that to found a conviction in a criminal case, where the trial court has to be satisfied of the accused person’s guilt beyond reasonable doubt, the prosecution evidence must be cogent, credible and trustworthy. Evidence that is obviously self-contradictory in material particulars or which is a mere amalgam of inconsistent versions of the same event, differing fundamentally from one purported eyewitness to another, cannot give the assurance that a court needs to be satisfied beyond reasonable doubt.
However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed as has been recognised in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question.”
66. The complainant herein said that the appellant engaged in sexual intercourse with her on several occasions, almost at will. The first time she made a report to PW 2, her aunt about it, no action was taken as the village chairman asked PW 2 for more evidence. The complainant went back to PW 2, and made another report. According to PW 2, in one instance, the issue was discussed in an open forum and the complainant repeated her assertions against the appellant. The appellant’s response was that the complainant had been given to him by his father and grandmother and he did not want anybody else interfering with her.
67. Indeed, the appellant said in his defence that the complainant’s grandmother had handed over her grandchildren, the complainant among them, to take care of them. Therefore, the assertion by the complainant to PW 2, then at the public forum where the appellant was present and confirmed that the complainant was at his disposal and her evidence in court that the appellant was misusing her sexually was consistent.
68. I am inclined to believe and I find that this conduct by the appellant, conceding that the complainant was at his disposal, supports the complainant’s evidence that the appellant was abusing her sexually. It was for the reason that he was aware that her father and grandmother would not take any adverse action against him as they appeared to be complicit in the issue and could not help her out. That is why he could go on with those acts of sexual abuse against the complainant with abandon.
69. Equally, the appellant’s argument that if indeed the complainant was married off to him, they would be staying together bears no weight. It is quite unfortunate that the complainant’s father and grandmother, would be complicit in such a scheme. But that cannot be blamed upon the complainant. Knowing that they were complicit, she made her report to PW 2 who eventually took action to assist her.
70. From the foregoing consideration, I am satisfied that the complainant was a witness of truth and what she stated was what she witnessed by experience. I find from her evidence that the appellant had sexual intercourse with her at will as he was confident that her father and grandmother would not take any adverse action against him. Those are the people the appellant says should have been made available as prosecution witnesses. I do not think so. I find that their attendance would not have added any value either to the prosecution or the defence case.
71. I also find that the inconsistencies in the complainant’s evidence, being mostly on the time the incidents occurred do not imply that she was being dishonest. I find that they are out of her inability to properly recall the dates of the incidents, considering the long-time lapse in some of them seeing that they were several.
72. I am satisfied that the complainant was an honest and truthful witness. Her conduct of reporting the incidents to PW 2 showed that this was a matter that was vexing her yet her father and grandmother were not giving her any assistance. They seemed complicit in the matter by claiming to have given the complainant to the appellant as stated by PW 2 and the appellant himself.
73. I have considered the defence tendered by the appellant. It was a denial that he had committed the offence. Although he alleged that the he was framed up by the complainant’s grandmother, the same was not correct, seeing from the evidence herein that in fact he was on very good terms with her and she was complicit in his acts of sexual molestation of the complainant. I find that the trial magistrate was correct in dismissing it as incapable of challenging the evidence of the complainant. The learned magistrate was therefore not in error.
74. I therefore find and uphold the learned trial magistrate’s finding that there was penetration of the complainant’s genital organ by the appellant who was properly identified as the culprit.
75. Consequently, I am satisfied that the appellant was correctly convicted and I affirm the trial court’s conviction on the offence of defilement of a child contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act (Cap. 63A) Laws of Kenya. The appeal on conviction is therefore dismissed.
76. The final ground raised by the appellant was on sentence. The appellant submits that the sentence imposed was harsh and excessive and went against all the principles of sentencing. It is his submission that he ought to have been given a lesser sentence as imposition of mandatory sentences causes great injustice. He supports his submissions with several decisions from the Court of Appeal and other jurisdictions outside Kenya on the unfairness of mandatory and minimum sentences and the need for the court to consider the circumstances of each case and exercise discretion when sentencing.
77. The appellant’s submission on mandatory and minimum sentences and the jurisprudence he has cited thereon from the Court of Appeal has been overtaken by events in view of the recent Supreme Court decision in the case of Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR) where it was held that minimum sentences under the Sexual Offences Act are not unconstitutional.
78. The learned trial magistrate correctly imposed the minimum sentence for defilement of a child of 14 years under section 8(3) of the Sexual Offences Act and this court has no jurisdiction to interfere with the same. The appeal on sentence is equally dismissed.
79. In the result, the entire appeal is found to be without merit and is dismissed.
80. Orders accordingly.
81. Right of appeal in 14 days.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual platform Teams this 4th day of March 2025 in the presence of:
The appellant in person at Shimo La Tewa prison.
Ms Valerie h/b for Ngiri for the respondent.
Johnson h/b for Etropia court assistant.