The Appellant was convicted and sentenced to serve 15 years imprisonment for the offence of defilement contrary to Section 8(1) as read with Section 8 (4) of the Sexual Offences Act.
The particulars of the offence were that the Appellant on the 19th day of January 2023 at Sugubu Sub-Location Nyamache Sub-County within Kisii County unlawfully caused his penis to penetrate into the vagina of E.N.B a girl aged 16 years.
The Appellant was aggrieved by the conviction and sentence and he preferred the appeal herein vide Petition of Appeal filed on 15th February 2024 on the following grounds:
- THAT, the trial court erred in law and fact when he convicted the Appellant without issuing the required documents to the Appellant which could have enabled him to conduct his case i.e statements and other necessary documents the prosecution intended to rely.
- THAT, the Trial Magistrate erred in both law and fact by convicting the Appellant without considering that there was no evidence to prove allegations of defilement to the required standard.
- THAT, the Trial Magistrate erred in law and in fact by failing to observe that the prosecution case was riddled with contradictions and inconsistencies which rendered their case unbelievable.
- THAT, the learned Magistrate erred in law and fact when he convicted and sentence the Appellant without regard to his basic rights for disclosure of the prosecution evidence which was intended to be brought against the Appellant as laid down in Article 50(2)(j) of the Constitution.
- THAT, the learned Trial Magistrate erred in law and in fact by convicting the Appellant without being accorded legal representation at the expense of the state and thus substantial injustice was suffered as per Article 50(2)(h) of Constitution.
Reasons wherefore the Appellant prayed that the appeal be allowed, conviction quashed and sentence set aside.
The Prosecution’s case was that the Complainant PW2 was from the market on 19th January 2023 at 7.00pm when at Millenium Area a man caught up with her and while armed with a knife told her ’unaringa sana you thought I could not get you. You are daughter to mzee’. That the man directed the Complainant to the bush where he ordered her to remove her clothes but when she was hesitant he ordered her and she co-operated and removed the clothes. That the man then defiled her and then asked if she was going to say and she promised to keep it a secret. That the man then asked her who was her boyfriend and she told him he was at JKUAT. That she then promised to be his girlfriend and gave him her number. That he released her after warning her that he would kill her if she revealed she had been defiled. That she walked to her cousin Brenda’s place and a report was made to Chief. That the Chief advised her to go to hospital. That she was taken to hospital and to police station. That after 4 days the suspect was arrested. PW2 said the suspect did not use condom when having sex with her. PW2 identified treatment notes, P3 and PRC forms that were filled in respect to the offence committed against her by the Appellant. She said she had known the Appellant before he defiled her as they grew up together and they spoke for 2-3 hours and she recognized him. In cross examination the Complainant said she was 18 years by the time she was testifying.
The Complainant’s mother Concepta Nyamusi PW1 testified that she was at home on 19/1/2023 when she got a call at 9.00pm that her daughter had been defiled by Zachariah. That she rushed to the scene 3km away and found PW2 crying and was dirty and unable to walk. She took the Complainant to hospital and she was treated after which the police took up the matter. PW1 said the suspect Mose was son to his neigbour. In cross examination PW1 said she had no differences with the Appellant and she never used to sell to him milk.
PW3 Hezron Oseko, Clinical Officer at Nyacheki Hospital testified that on 19/1/2023 he attended to the Complainant herein with allegations of defilement by a perpetrator who threatened her with a knife. That the Complainant gave in to the perpetrator to save her life. That the Complainant’s underwear was soaked in sperm discharge and tests were done and it revealed pus cells/epithelial cell. PW3also observed that the Complainant’s had old broken hymen. He filled P3 and PRC forms which he produced together with treatment notes as exhibits 2,3and 4.
In cross examination PW3 said that the Complainant’s vagina was inflamed due to friction.
PW4, P.C. Erick Obure from Nyacheki Police Station issued P3 to the Complainant and same was duly filled and after recording statements the Appellant was arrested on 25/1/2023 at Koiwan Bar within Nyacheki.
In cross examination the I/O said that the Appellant had no relationship with the Complainant except that Appellant was supplying them with milk.
The Appellant in his sworn statement denied having committed the offence and said that on 19/1/2023 he could not recall where he was. That on 22/1/2023 he was in a matatu from Keroka to Nyangusu and at Nyacheki road block he was stopped and told he was required at the Police Station. That when he went to the Station he met with a warrant of arrest for 2021. That the OCS put him in cells for 23/1/2023. That his neighbor went for his milk money Kshs. 2550/=. He said he had paid fees as he had no money. That the neighbor told him he was leaving the money for good and that he would know what the said neighbor was capable of doing. The Appellant said that his girl was due to join form 1 and he paid 40,000/= to school and was left with 1,200/=. He said the other children were yet to report to school.
The Appellant said he did not meet the Complainant on 19/1/2023 and he did not know why she framed him. He said the Complainant was not his girlfriend. He said the Complainant’s parents were his neighbours.
This Appeal was canvassed by way of written submissions.
In the Appellant’s written submissions are undated and he submitted that he was detained beyond 24 hours without being informed of the reason for his detention contrary to Article 49(1)(f) and (g) of the Constitution.
The Appellant also submitted that PW1 and PW2’s evidence was contradictory as to the scene of the defilement and the contradiction went to the root of the prosecution case. The Appellant relied on the holding in John Musyoka Vs Republic (2017) eKLR, CA 11 2016 where the court stated that the High Court failed to evaluate the veracity of all the contradictions and inconsistencies submitted by the Respondent.
The Appellant also submitted that the Complainant’s evidence was not truthful as she did not scream or raise any alarm at the alleged time she was defiled but went ahead to say that she accepted to be the Appellant’s girlfriend and even gave him her mobile phone number.
The Appellant further submitted that the investigating officer’s failure to visit the scene showed he did not take the matter seriously.
On sentence the Appellant faulted the trial court for failing to meet the objective of sentencing and that there was no reasonable proportionality between the sentence and the offence. He urged the court to exercise discretion and give a different finding.
The Respondent’s on the other hand filed written submissions dated 19th November 2024 and submitted that the Appellant had not demonstrated that he was not supplied with the prosecution’s evidence as he never raised any concern to the court that he was not supplied with the witness statements. That the Appellant fully participated in the proceedings and cross examined the witnesses and that his claim was an afterthought. The Respondent relied on the holding in Hadson Ali Mwachongo v Republic Criminal Appeal No 65 of2015[2016] KECA where the court while dismissing an appeal on similar grounds stated that:-
“We are equally satisfied that the appellant’s constitutional right to a fair trial was not violated. The record does not indicate the appellant raising any issue pertaining to access to witness statements. On the contrary, he is recorded informing the court that he was ready for the hearing of the case. When he was put on his defence 18th April 2011, he informed the Court that he was ready for his defence but later stated that he needed to be provided with “the charge”. The trial court adjourned the proceedings and directed that the proceedings be typed and supplied to the appellant. On 3rd June 2011 the record shows that the court noted that the typed proceedings were ready and directed that the appellant be supplied with copies in readiness for hearing of his defence on 8th July 2011. On the latter date the appellant indicated that he was ready for the hearing of his defence. In short, the appellant’s complaint regarding denial of access to witness statements is simply not borne out by the record.”
The Respondent further relied on the holding in Francis Macharia Gichungi & 3 Others V Republic Cr. App. No 11 of 2004 where the court stated that it is to be reasonably expected that an accused person who claims that his or her rights have been violated will at the very least raise the issue with the trial court.
all the ingredients of the offence of defilement namely penetration, age of the complainant and identity of the assailant were proved by the Prosecution beyond reasonable doubt.
The prosecution also submitted that the elements constituting the offence of defilement were proved beyond all reasonable doubt by production of the Complainant’s birth certificate to confirm the Complainant was 17 years at the time she was defiled. It was also submitted penetration was proved by the evidence of the victim which was corroborated by the evidence of PW3 who produced P3 form which confirmed the Complainant was defiled and her hymen was broken.
On identification of the perpetrator it was submitted that the Complainant knew the Appellant before and recognized him at the time of the incident.
Regarding the Appellants contention that he was not assigned legal representation the Respondent argued that Article 50(2) (h) of the Constitution mandates the court to appoint an advocate for an accused person at state expense whenever the court is of the opinion that substantial injustice would otherwise result if the accused is not represented by an advocate at the trial. The Respondent cited the holding of the Supreme Court in R v Chengo & 2 Others (Petition No 3 of 2015) where it was held :-
“…We must however emphasize the fact that in accordance with the language of the Constitution this particular right is not open ended. It only becomes available if substantial injustice would otherwise result.”
It was further submitted that from the proceedings it is evident that no substantial injustice was occasioned since the Appellant fully participated in the prosecution hearing, cross examined the witnesses and conducted his defense. That the Appellant did not raise the issue of legal representation before the trial court and cannot claim that the court erred. The Respondent further placed reliance on the case of Manyeso V Republic (Criminal Appeal No 12 of 2021[2023] KECA 827 where the court in dealing with the issue of legal representation stated that:-
‘’…However, in the present appeal, the Appellant did not raise the issue of legal representation either in the trial court or in the High Court, and the record of the trial court shows that the appellant participated in the trial and cross examined witnesses, and it is not evident that he suffered any or any substantial injustice. For these reasons , we do not find any merit in the appellants arguments that their rights to fair trial under Article 50(2) (g) and (h) of the Constitution were violated.’’
The court was urged to dismiss the appeal.
Analysis and Determination
In a first appeal, the duty of the court was stated in Mark Oiruri Mose vs. R (2013) eKLR thus;
“…. the Court is duty bound to revisit the evidence tendered before the trial court afresh, evaluate it, analyze it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence and give allowance for that.”
Having considered the grounds of Appeal, and revisited the evidence tendered before the trial court afresh as well as the submissions by the rival parties, the issues for determination are whether the ingredients of the offence of defilement were proved beyond reasonable doubt.
Section 8 (1) as read with 8(4) of the Sexual Offences Act provides:
“(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement…….
….. (4) 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.”
The key ingredients of the offence of defilement are age of the victim, proof of penetration and identification of the assailant.
From the evidence of PW2 she said she was 17 years and was waiting to join college. The Complainant’s mother PW1 also gave her age as 16 years by the time of the incident and produced Certificate of Birth as Exhibit P1.
In the Court of Appeal case of Edwin Nyambogo Onsongo Vs Republic [2016] eKLR it was stated as follows on proof of age.
“... 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.”
PW3 the Clinical Officer also testified and gave the Appellant’s apparent age as 16 years as shown in P3 EX P 2. The Appellant in cross examination was told it is the Complainant’s father who obtained the Certificate to confirm her age to be as per the Prosecution evidence. The age of the Complainant was therefore proved beyond all reasonable doubt.
On the issue of penetration, the Complainant said the Appellant took her to the bush while armed with a knife and threatening to kill her and while there defiled her and threatened her if she revealed. When the Complainant was taken to the hospital on the same night PW3 found her under pant was soaked with sperm discharge and tests revealed pus cells/epithelial cells with white discharge. PW3 also said that the Complainant’s vaginal wall was inflamed. However, PW3 said that the Complainant had a broken hymen which was not freshly broken. The Complainant may have had sexual intercourse before and that may have explained the old scar but on this particular occasion the inflamed vaginal wall and sperm discharge that soaked her pant could only be attributed to penetration that had taken place a few hours before she was examined.
On the issue as to whether the perpetrator was positively identified the Complainant said she grew up with the Appellant and she knew him very well. She said the Appellant stopped her from behind and was armed with a knife and told her ‘unaringa sana’ and directed her into the bush where he defiled her and asked her to be his girlfriend and threatened to kill her if she revealed he had defiled her. PW2 went to her cousin’s place and the cousin called and reported to the Chief who advised them to go to hospital and to the Police. PW2 said that she talked to the Appellant for 2 to 3 hours and that made her recognize him. She gave the Appellant’s name to the Police and PW4 P.C. Oseko said when he was given the name he went on 25/1/2023 and arrested the Appellant who was known to him. PW1 said she was not supplying milk to the Appellant and PW4 clarified that it is the Appellant who was supplying milk to the Complainant’s family. There was no evidence that would be construed to show the Complainant’s family had a grudge with the Appellant that could have made them to fabricate him. The Appellant claimed that he owed neighbor 2550/= for milk and that he had used the money to pay school fees for his daughter but that was an allegation that was not put to the Prosecution witnesses during cross examination and therefore the same can only
On the issue of sentence not being proportional to the offence and the mandatory nature of sentences under Sexual Offences Act being unconstitutional the Supreme Court 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) overturned the Court of Appeal decision that mandatory minimum sentences in Sexual Offences Act are unconstitutional.
Section 8(4) of the Sexual Offences Act provides for imprisonment for a term of not less than fifteen years for defilement of a child between the age of 16 and 18 and the Appellant’s sentence was therefore lawful particularly since he used force and threatened to kill the Complainant if she did not co-operate and also threatened to cause her harm if she revealed that he had defiled her. This court finds no reason to interfere with the sentence.
Based on the re-evaluation of the evidence on record in the trial Court, analysis of the grounds of appeal as against the submissions of the rival parties this court finds that this appeal lacks merit and is dismissed save that the Appellant’s sentence of 15 years will run from 26th.January 2023 when he was first arraigned in court pursuant to Section 333(2) of the Criminal Procedure Code as it appears that he was in remand custody throughout his trial.
Right of Appeal 14 days.
Dated, signed and delivered this 6th day of March, 2025