1.Benard Akoth Odhiambo, the appellant herein, was convicted for the offence 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 the offence were that on 31st day of January, 2020 at Kolo village, Waware North sub Location in Mbita Sub County within Homa Bay County, intentionally and unlawfully caused his penis to penetrate the vagina of V.P.A., a child aged 8 years.
3.The appellant was sentenced to life imprisonment. He has appealed against both conviction and sentence. He raised ten grounds of appeal which I have summarised as follows:a.That the trial magistrate erred in law and facts by relying on prosecution’s evidence that was marred with contradictions and inconsistencies.b.That the trial magistrate erred in law and facts by not considering that the complainant who is a minor was lured to give incriminating evidence against the appellant in order for them to achieve their goals.c.That the appellant was not accorded a fair trial as he was not afforded time to prepare for defence.d.That the present case was a frame up against the appellant due to an existing a grudge.e.That the trial magistrate erred in law and facts by not considering that the age of the complainant was not proved beyond reasonable doubts to be below 11 years.f.That the trial magistrate erred in law and facts by relying on medical evidence that was not sufficient enough to prove penetration as one of the ingredients of defilement.g.That the trial magistrate erred in law and facts by not considering defence evidence as it was cogent enough to amount to an acquittal.h.That the sentence of life imprisonment imposed by the trial magistrate is harsh and excessive thus contravening the provisions of article 50(2) (p) of the Constitution.
4.The appeal was opposed by the state through Mr. Ochengo, learned counsel. He contended that it lacked merits.
5.This is a first appellate court. As expected, I have analyzed and evaluated afresh all the evidence adduced before the lower court and I have drawn my own conclusions while bearing in mind that I neither saw nor heard any of the witnesses. I will be guided by the celebrated case of Okeno vs. Republic  EA 32.
6.Section 8(1) of the Sexual Offences Act defines defilement in the following terms:A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.An offence of defilement therefore, is established against an accused person when the prosecution has proved the following ingredients:a.That there was penetration of the complainant’s genitalia;b.That the accused was the perpetrator; andc.The age of the victim must be below eighteen years.In Fappyton Mutuku Ngui vs. Republic  eKLR Joel Ngugi J. said:Going by this definition of defilement, I agree with Mr. Mwenda on the issues which the court needs to determine. The first is whether there was penetration of the complainant’s genitalia; the second is whether the complainant is a child; and finally, whether the penetration was by the Appellant.
7.When the complainant’s returned from a funeral, she noticed that the latter was not her normal self. She therefore interrogated her and she said she had been defiled and implicated the appellant.
8.The complainant (PW1) testified that the appellant got hold of and went on top of her and did bad “thing” after putting his “thing”. Certainly the prosecutor ought to have done better than this in eliciting more evidence on what transpired. However, the medical evidence which was adduced by Herbert Ochieng’ Ouma (PW4) left no doubt that this minor was defiled.
9.In his evidence PW4 testified that when he examined the complainant on 31st January, 2021 he observed that her dress was stained on the backside, had bleeding bruises on the upper part of the labia majora and cut wounds on the labia minora. There was blood stained vaginal discharge. There were numerous epithelial cells in the swab which was an indication of recent vaginal penetration.
10.In his defence the appellant contended that he was falsely implicated for he had gone to remove iron sheets he had used to construct a house for the complainant’s mother. He did not confront the complainant’s mother or any other witness with these facts. The trial magistrate was therefore justified to dismiss his defence.
11.I am therefore satisfied that the child was defiled as complained and her defiler was identified as the appellant herein.
12.The appellant contended that the sentence meted was excessive and unconstitutional. This argument in my view is based on incorrect interpretation of the law. Section 8 (2) of the Sexual Offences Act provides:A person who commits an offence of defilement with a child aged eleven or less shall upon conviction be sentenced to imprisonment for life.The learned trial magistrate therefore meted out the only legal sentence available. There was nothing unconstitutional about it.
13.From the foregoing analysis of the evidence on record, I find that the `the appeal lacks merit and I accordingly dismiss it.