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JudgmentThe Republic AND Juma Abdalla Machi VS5 min read

The Republic AND Juma Abdalla Machi VS

High Court at Voi High Court · · George. Dulu


(From the conviction and sentence in Sexual Offence Case No. E032 of 2022 at Voi Law Courts delivered on 1st August 2023 by Hon. A. M. Obura (Mrs.) (CM)

  1. The appellant was convicted of two counts of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No. 3 of 2006.
  2. The particulars of count I were that on diverse dates between January 2022 and 25th November 2022 at Mwakingali B area in Voi Sub County within Taita Taveta County unlawfully and intentionally caused his male genital organ (penis) to penetrate the female genital organ (vagina) of E.W a girl aged 4 years.
  3. The particulars of count II on the other hand were that between the same dates and at the same place unlawfully and intentionally caused his male genital organ (penis) to penetrate the female genital organ (vagina) of E.W a girl aged seven years.
  4. On conviction, he was sentenced to 40 years imprisonment on each of the two counts, sentences to run concurrently, which is a total of 40 years imprisonment.
  5. Dissatisfied with the conviction and sentence, the appellant has come to this court on appeal and relied on the following amended grounds of appeal:-
  6. The learned Magistrate erred in convicting the appellant yet failed to find that the prosecution did not prove their case beyond reasonable doubt as required in law.
  7. The learned Magistrate erred in failing to appreciate that the offence herein is fabricated against the appellant as a vendetta.
  8. The learned Magistrate erred in failing to appreciate that the appellant’s terminal medical condition absolves him from commission to the offence.
  9. The learned Magistrate erred in law by failing to consider the appellant’s defence yet the same was cogent and believable.
  10. The sentence imposed was both harsh and excessive since it was applied in mandatory terms as provided by the statute and failed to consider the appellants mitigation and facts and circumstances unique to the case.
  11. The appeal was canvassed through written submissions.  In this regard, I have perused and considered the submissions filed by the appellant as well as the submissions filed by the Director of Public Prosecutions.
  12. This being a first appeal, I am required to reconsider all the evidence on record, and come to my own independent conclusions and inferences – see Okeno =Versus= Republic (1972) EA 32.
  13. In proving their case, the prosecution called seven (7) witnesses.  On his part, the appellant tendered sworn defence testimony and called two additional witnesses.
  14. The main ingredients of the offence of defilement have been restated by courts over and over again.  They are the age of the complainant or victim who should also be below 18 years.  Secondly, penetration of a sexual nature even if partial.  Thirdly, the identity of the perpetrator or culprit – see Charles Wamukoya Karani =Versus= Republic – Criminal Appeal No. 72 of 2013. 
  15. In the present case, the victims are two Wambui Elizabeth PW2 for count I said to be 4 years, and Eunice Wanjiru or Wanjiku PW1 for count II, said to be 7 years.
  16. Both complainants testified in court to their age.  No parent came to court to testify.  However, PW7 Sgt. Jesica Kabea who testified for the investigating officer Sgt. Lucy Macharia produced two birth certificates – in the names of Eunice Wanjiku and Elizabeth Wambui.  The birth certificate of Eunice Wanjiku was issued on 3rd May 2023 after the alleged incident.
  17. In my view, the evidence on record on the birth certificates did not satisfy the test of unbroken chain in handling of the certificates, as it is not shown in evidence where the said birth certificates were obtained, handed over to the police, and by whom, and nobody including the complainants, owned the said birth certificates.
  18. The said birth certificates relied upon therefore, fell within the definition of hearsay documentary evidence and cannot establish a fact, as their authenticity is in doubt.
  19. That said however, the trial Magistrate, the representative of the Director of Public Prosecutions, and the appellant saw the two complainants in court.  The appellant infact knew the two complainants before as neighbours.  He did not challenge their age.  Thus on the oral and visual evidence on record, I find that the prosecution proved the respective ages of the two complainants beyond any reasonable doubt.  They were certainly young girls of the respective ages alleged.
  20. I now turn to penetration of a sexual nature.  In this regard, both complainants stated in evidence that they were penetrated sexually through the vagina on 25th November 2022, as well as before then.
  21. The medical evidence on record is that the two were taken to hospital same date almost immediately after the allegation was made.  The medical findings were that no lacerations or injuries of any nature were found in their sexual organs, but that the hymen of each of the two was broken, but not recently.
  22. In my view, for young girls of 4 years and 7 years old respectively, recent sexual penetration with a penis would certainly leave some visible lacerations or at least epithelial cells friction signs.  The absence of any signs of sexual friction in my view, leads to the conclusion that the alleged sexual penetration on 25th November 2022 was not proved by the prosecution beyond any reasonable doubt. 
  23. I will add that the alleged sexual penetration before the 25th November 2022 was also not proved as the mere fact of the absence of the hymen does not prove penetration with the penis, as other types of penetration including through a finger and exercises, can cause loss of the hymen, and in addition scientifically some girls are born without a hymen.
  24. Turning now to the perpetrator or culprit, the complainants testified in evidence that it was the appellant who penetrated them.  However, with the evidence of the prosecution and the defence on record, and the fact that Khadija who was the initial reporter of the allegation against the appellant was not called by the prosecution to testify, and none of the two parents of the complainants Francis Maingi Gichungu and Damaris Machocho Maingi were called to testify in court by the prosecution, I find that the prosecution did not prove beyond reasonable doubt that the appellant penetrated any of the complainants sexually as alleged.
  25. It is also important to mention here that the evidence on record is to the effect that PW5 Esther Nyambura an elder sister of the complainants threatened Eunice, thus the allegation arose out of coercion.  It cannot be relied to prove a fact.
  26. Having found as above, this appeal will succeed, conviction quashed and sentence set aside.
  27. Consequently, and for the above reasons, I allow the appeal quash the conviction on both counts and set aside the sentences imposed.  I order that the appellant be set at liberty unless otherwise lawfully held.

Dated, signed and delivered this 25th day of June 2024 in open court at Voi.

In the presence of:-

Alfred/Trizah – Court Assistants

Appellant in person

Mr. Sirima for State

    The Republic AND Juma Abdalla Machi VS The Republic AND Juma Abdalla Machi VS