Proof of age of a victim to a sexual offence is important in the prosecution of sexual offences

Omar Nache Uche v Republic

Criminal Appeal No. 11 of 2015

High Court at Marsabit

K. W. Kiarie, J

November 11, 2015

Reported by Teddy Musiga & Daniel Hadoto

Brief facts

The appellant, was charged with an Offence of defilement and in the alternatively, with the offence of committing an indecent act with a child. He however denied that there was any sexual intercourse between the two. He was found guilty of the offence in the substantive charge and sentenced to serve 25 years imprisonment. He appealed against both conviction and sentence.

Issues

i. Whether proof of age of a victim is crucial factor in cases of sexual offences under the Sexual Offences Act.

ii. What is the effect of a charge that cites nonexistent provisions of the law?

Criminal Practice and Procedure – defilement – assessment of victim’s age in defilement cases – whether proof of age of a victim is a crucial factor in cases of sexual offences under the sexual offences Act.

The Sexual offences Act Section 8(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.

Held

1.      In cases of defilement, age was very important aspect that required to be proved for a sentence to be meted out was pegged on the age of the victim.

2.      The age of a victim in a sexual offence under the Sexual Offences Act was a critical component. It formed part of the charge which had to be proved the same way as penetration in the cases of rape and defilement. It was therefore essential that the same be proved by credible evidence for the sentence to be imposed was dependent on the age of the victim.

3.      The Sexual Offences Act categories the gravity most sexual offences on the basis of the age of the victim, and consequently, the age of the victim was a necessary ingredient of the offence which had to be proved beyond reasonable doubt. That had to be so because dire consequences flowed from proof of the offence.

4.       Proof of age of a victim was a crucial factor in cases of defilement under the Sexual Offences Act. It had to be proved failing which the offence could not have been proved beyond reasonable doubt in material particulars. In the instant case, the age of the victim was proved to required standards.

5.      The charge cited a nonexistent section. In some instances citing a nonexistent section could be fatal to the prosecution case. The correct way of citing the charge ought to have been; “….contrary to section 8(1) as read with section 8(3)…” Since the accused understood the offence, there was no miscarriage of justice. That was curable under section 382 of the Criminal Procedure Code. That explained why it was not complained of both at the trial court and the instant court.

6.      Though the grounds of appeal raised the issue of the appellant being a minor at the time of the alleged offence, it was not pursued in oral submissions. When the appellant testified he gave his age as 20 years. That meant he was not a minor as at the time of the alleged offence.

7.      There is no specific number of witnesses that require to be called; however, in some instances failure to call some particular mentioned witnesses without any explanation may be fatal to the prosecution case.

8.      The witness in a criminal case upon whose evidence it was proposed to rely could not create an impression in the mind of the court that he/she was not a straightforward person, or raise a suspicion about his/her trustworthiness, or do (or say) something which indicated that he/she was a person of doubtful integrity, and therefore an unreliable witness which made it unsafe to accept his/her evidence.

9.      [Obiter] There is need for a relook into the Sexual Offences Act (CAP 62A) and introduce a clause that will protect the male child who may be termed as an age mate of a female minor (in spite of having attained the age of majority) where intercourse is consensual and also in instances where the female plays a leading role to initiate the relationship.

Conviction quashed, sentence set aside.

Cases

East Africa

1. Bukenya & others v Uganda [1972] EA 549 – (Affirmed)

2. Francis Omuroni v Uganda Court of Appeal in Criminal Appeal No 2 of 2000 – (Followed)

3. Kaingu Elias Kasomo v Republic Criminal Appeal No 504 of 2010 – (Followed)

4. Mwangi vRepublic (2008) I KLR 1134 – (Followed)

5. Ndungu Kimanyi v Republic [1979] KLR 283 – (Followed)

6. Okeno v Republic 1972 EA 32 – (Followed)

Statutes

East Africa

1. Criminal Procedure Code (75) section 382 – (Interpreted)

2. Sexual Offences Act, 2006 (Act No 3 of 2006) sections 8(1) (3); 11(1) – (Interpreted)

Advocates

1. Mr Motende for the Respondent

2. M/s Thibaru for the Appellant