1.The Appellant was arraigned before the Senior Principal Magistrate at Mumias in Criminal Case No. 31 of 2018 and charged with the offence of defilement contrary to section 8(1) as read with section 8(4) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence are that on diverse dates between 10th and 18th September, 2018 at [particulars withheld] village Lubinu sub-location in Mumias east sub county in kakamega county, the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of FT, a child aged 16 years.
2.As alternative to the offence of defilement, the Appellant was charged with the offence of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006 and particulars given that on the said diverse dates and at the named place, he caused his penis to come into contact with the vagina of FT a child aged 16 years.
3.The prosecution called a total of Five (5) witnesses, with PW1, the complainant/victim testifying that she was born on 3rd April, 2002 and was a student at [particulars withheld] Primary School until October of 2018 when she left and married the appellant who was her boyfriend. She recalled having met Appellant on 10th September, 2018 when coming from shaving her hair, he offered to carry her in his motor cycle which she agreed to and both went to his house where he asked her to be his girlfriend and they had sex. She then stayed with the Appellant for one week as a married couple but did not tell her mother about her whereabouts. She told the Appellant she was a pupil and when the Appellant asked her to go back to school she refused and that even he Appellant’s mother spoke to her on going back to school but she refused.
4.On 18th September, 2018 while in bed with the Appellant, the police same and arrested the Appellant while she was taken to Makunga Hospital for medical examination. On cross examination she stated that the Appellant is her husband and the Appellant’s family know her as such.
5.PW2 testified that PW1 is her 7th born child born in the year 2002 and that she was a standard seven pupil at Shianderema Primary School who disappeared from home on 10th September, 2018 after she had gone to shave her hair. The witness reported to the village elder and on 14th September, 2018 while on her way to her parent’s home, she spotted PW1 standing at a door in Lubinu area. She then reported to the sub-chief and later at the Shianda police base and was later informed by the sub-chief that the Appellant and PW1 had been arrested. She went back to the police base on 15/9/2018 to have a talk with PW1 who told her that she wanted to get married. She took the PW1 home but again disappeared from home on 28/9/2018 while the accused was under arrest. The cross examination centered largely on whether he saw the girl in the home of the appellant and what colour was the appellant’s door
6.PW3, assistant chief Lubinu sub location testified that she received a complaint from PW2 that PW1 was staying with the Appellant, advised PW2 to report to Shianda Police Base and in conjunction with the police, they raided the Appellant’s home where they found him with PW1. On being cross examined, he told the court that she did not take a photograph of the appellant and his victim because it was night, that the appellant was known to her and that it is the appellant who opened for them the door when called out.
7.PW4 was the investigating officer, an officer attached to Shianda police station and confirmed that they arrested the Appellant and PW1 at the Appellants home while they were sleeping. He took them to Makungu Health Centre the next day for medical examination, recorded witness statements during which point he discovered that PW1 was sixteen (16) years old.
8.In cross examination he said that when they went to effect the arrest, both appellant and the victim were naked and that he gained entry to the house without breaking the door.
9.PW5 testified that he is a clinical officer attached to Makungu Rural Health Demonstration Centre in Mumias East to whom, on 19/9/18 at about 11:50 AM, was handed over by the police, the Appellant and PW1 for medical examination. He examined both and PW1’s pregnancy results and HIV results were negative though the Appellant and PW1 had contracted syphilis, a sexually transmitted infection.
10.When cross examined by the appellant the witness told the court that it was possible the two had unprotected sex and that syphilis was investigated using blood test.
11.After the close of the prosecution’s case the court ruled that a prima facie case had been established and the accused person was put on defense. He opted to give unsworn statement and intimated that he would call one witness but ended up not calling the intended witness.
12.In the unsworn evidence, the appellant told the court that he was 17 years old though he had not carried his birth certificate. He denied the charges leveled against him and claimed not to know PW1 asserting that he was scheduled to travel to Nairobi with one Felix but was arrested before the journey. To him the charges were fabricated against him.
13.Judgment was subsequently delivered by which the appellant was convicted and sentenced to fifteen years’ imprisonment. It is that judgment which has aggrieved the appellant and provoked this appeal where some six grounds have been fronted. The summary of those grounds are that there was never proof of the case against him beyond reasonable doubt because the trial court failed to interrogate the prosecution’s evidence exculpating him and failing to note that without forensic evidence, there was no link between him and the offence hence the conviction was against the weight of evidence. The other limb of the grounds is that his evidence was dismissed without consideration and lastly that the sentence never met the constitutional threshold under article 50 (2) g h and j.
14.Even though it was ordered that parties file and exchange submissions, only the Respondent filed submissions dated 9.5.2022.
15.It is the submission of the Respondent that the age of PW1 was conclusively proved in evidence since her birth certificate was produced and it showed that PW1 was born on 3rd April, 2002. In what would constitute proof of age in sexual offences, the Respondent relied on the case of Daniel Kamau v Republic  eKLR for the proposition that in defilement cases, medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence and further that apart from medical evidence age may also be proved by birth certificate, the victim's parents or guardian and by observation as well as common sense. Bases on that proposition the respondent asserts that there was sufficient evidence by PW1, PW2, PW4 and PW5 that the victim was proved to have been a minor aged below 18 years. In addition, the Respondent further relied on the case of Wesley Kipngeno Chirchir v Republic  eKLR and Francis Omuroni v Uganda C.C No. 2 of 2000.
16.On the issue that the Appellant was 17 years at the commission of the offence, the Respondent submits that that is false since at the hearing of the bond review the Appellant stated to the court that he was 18years. The Respondent further submits that if at all the Appellant was not an adult, the same would not lead to an outright acquittal. They relied on the case of S C N v Republic  eKLR where the court held that where the conviction was upheld even though the sentence was tinkered with by the court of appeal on the basis that the court is always faced with the dilemma of having to sentence a minor turned adult.
17.This court has considered the grounds of appeal, the proceedings of the lower court and the submissions by the Respondents and discerns the following issues to stand out for determination: -
AnalysisWhether the charge of defilement was proved beyond reasonable doubt against the Appellant
18.Black’s Law Dictionary 9th edition while quoting the celebrated decision in Commonwealth –Vs- Webster, 59 Mass. (5 Cush) 295,320 (1850) (Per Lemuel Shaw. J.) defines reasonable doubt as;
19.Was the offence of defilement proved beyond reasonable doubt? For the offence of defilement to stand, the prosecution must prove the three ingredients namely; age, penetration and positive identification of the perpetrator1. These ingredients flow from the stipulation of the statue in Section 8(1) of the Sexual Offences Act defining the offense as an act which causes penetration with a child.
Age of the victim
20.Age of a victim is the cornerstone of any case of defilement and the same must be proved in the first instance. The Court of Appeal in Hadson Ali Mwachongo Vs. Republic  eKLR emphasized the need to prove age in the following words:
21.This court notes that during the hearing of this case, the victim said that he was born on the 3.4.2002 and showed to court the birth certificate. That evidence was reiterated by the mother, PW2 as well as PW4 before PW5 produced the birth certificate as PEH1.A birth certificate is conclusive proof as to the age of a person in terms of section 83 of the evidence Act. With the production of the birth certificate and the evidence of the mother confirmed beyond reasonable doubt that PW1 was 16 years old at the time the offence was committed, this court finds that the Respondent well proved that the victim was a child.
22.Penetration is equally an important element in a case of defilement and it is defined under section 2 of the Sexual Offences Act to mean the partial or complete insertion of the genital organs of a person into the genital organs of another person.It was the testimony of PW1, the victim, that she had sex with the Appellant who she asserted was her husband. Though the evidence of a child in sexual offences need not to be corroborated under section 124 of the Evidence Act, it was the testimony of PW3 and 4 that they arrested the appellant with the victim in his house and that both were found naked in bed. In addition, PW5, a clinical officer, told the court that upon the medical examination of the both the victim and the Appellant, they both had syphilis, a sexually transmitted infection, a sign that they had enjoyed unprotected sex. The fact of rape or defilement is not proved by D.N.A test but by way of evidence.2 It is thus the finding of the court that penetration was sufficiently proved to the requisite standards.
23.It was the evidence of the victim that the Appellant was well known to her even referring to her as the husband in addition to the evidence by PW# and 4 that both were found together in bed in the middle of the night after the victim had ran away from home for days. She testified that they lived together as a married couple. There was nothing to cast doubt on the victim’s recognition of the Appellant. The court of appeal in Reuben Taabu Anjononi & 2 Others v Republic  eKLR held: -
24.The court therefore finds that the prosecution/Respondent did prove the three ingredients of defilement as against the appellant and therefore the case as a whole was proved well beyond reasonable doubt.
Was the evidence by the defence given due consideration?
25.When given a chance to defend himself, the appellant termed the charge as a fabrication denied any knowledge of the victim and said that he was on a planned journey to Nairobi and was arrested just before he departed. He never meaningfully challenged the otherwise cogent evidence laid against him. Even though the court has not specifically discounted the evidence of the appellant inits conclusion, I find the evidence to have been taken into account when the court said:
26.The court finds no fault with the decision and conviction of the appellant by the trial court and therefore uphold the same. This is done well cognizant with the courts mandate on a first appeal to reexamine the entire evidence and come with own conclusion.
27.The last was an ancillary question on the age of the appellant which the court considers should have been pursued by the court but was not considered. A court of justice must always seek to establish the important aspects of the case. Under the sexual offenses Act and the children’s Act, age of both offender and victim remains a critical question. In his defence, the appellant told the court that he was aged 17 years. That was an allegation of being a child and it was the duty of the court, for the sake of best interest of the child, to investigate more. The court did not and that was an error. To this court once faced with such a scenario the court may call for evidence in that regard or just send him for age assessment. That would have wholly changed the consideration for purposes of sentencing and having not been done then, as a first appellate court it must now be done.
Was the sentence proper or merited?
28.The law prescribes a sentence fifteen years and the trial court in imposing the sentence appear to have felt constrained to impose the mandatory sentence devoid of its constitutionally guaranteed judicial discretion to impose any other suitable or a lesser jail term. It would appear that even though the appellant was accorded the chance to mitigate not much was thereafter assigned to such mitigation because the court says nothing on why only the statutory sentence was appropriate. It remains the law that a court dealing for the offence in a criminal case retains a discretion to impose any other sentence permitted by the law.
29.Before the trial court, the victim readily and unequivocally, over and over, insisted to have been in a marital relationship with the Appellant, a relationship that was known by all including the Appellant’s family. Even though the appellants age was not proved, it is possible that the age difference was not so wide to point towards the appellant enjoying undue and unfair sexual exploitation over the victim. Only sex pests, pedophiles and repeat offender deserve the very severe sentences stipulated under the Act.
30.The court takes the view that criminal justice goes beyond conviction and sentencing. Criminal justice must take into account and contextualize the realities in society and seek the best way to not only punish the offender but also seek reintegrate him in society to be a better and useful citizen. It is now acceptable for a criminal court to also invoke the promotion of other dispute resolution practices including diversion and reconciliation between parties especially where there exists a relationship between the accused and the victim or where both are minors. Muriithi , j, in Mary Kinya Rukwaru v Office of the Director of Public Prosecutions & another  eKLR made the following observations I find compellingly persuasive: -
31.The court deems this this matter, on account of age of the appellant to be one of those that alternative to jail term should have been considered. It was not. The court considers it prudent, taking into account the age of the appellant and the period he has taken in prison, I set to revisit that sentence by calling for reports from prison as well as the probation department on the propriety of an alternative sentence to the appellant.
Rendition and Final Orders
32.Accordingly, for the reasons set out above, and having dismissed the appeal on conviction, the court orders as follows: -
a.Let the prison authorities present before this court a report on the conduct and behavior of the Appellant, while in prison, within 30 days from now.b.Let the probation office prepare and present a report on the victim impact as well as a report on the social circumstances of the appellant. Such reports should as much as possible be comprehensive to include interviews with parents of both victim and those of the appellant, and be filed within 21 days from today.c.This matter be mentioned on 13.7.2022 to receive such reports.