1.Before Othaya Principal Magistrate, the appellant was charged and convicted of the offence of defilement contrary to Section 8(1) as read with Section 8 (2) of the Sexual Offences Act No. 3 of 2006. He was sentenced to serve 40 years imprisonment. The particulars of the charge are that on 30th and 31st day of August 2019, at [particulars withheld] village in Nyeri South Sub County within Nyeri County the appellant intentionally and unlawfully caused his penis to penetrate the vagina of D.W.N a child of 10 years.
2.Being aggrieved by the entire judgement, the appellant has lodged this appeal citing 9 grounds of appeal which can be summarised as follows:-a.The learned trial magistrate erred in law in convicting him whereas the prosecution had not proved the case beyond any reasonable doubt.b.The learned trial magistrate erred in law and in fact in convicting the appellant on uncorroborated and or insufficient and uncorroborated evidence of a minor;c.The learned trial magistrate erred in fact and in law in reaching an erroneous finding in that the defence of the appellant and his submissions were not considered.d.The learned trial magistrate erred in fact in meting out sentence that was grave and excessive in the circumstances.
3.The parties agreed to dispose of the appeal by filing written submissions.
The Appellant’s Submissions
4.The appellant relies on Section 107 of the Evidence Act and the decision in Charles Wamukoya Karani vs Republic Criminal Appeal No. 72 of 2013 and submits that the prosecution did not prove all the ingredients of the offence of defilement beyond reasonable doubt. On the proof of age and identification of the perpetrator, the appellant relies on the case of Francis Omuroni vs Uganda Court of Appeal in Criminal Appeal No. 2 of 2000 and concedes that he is not disputing the age of the complainant and neither is he disputing the complainant knew him before the alleged incident.
5.The appellant submits that the prosecution failed to link him with the offence as the DNA Report was never produced at the hearing despite his DNA samples being taken to the government chemist. The appellant further submits that PW3 testified that no spermatozoa were found on PW1. She had puss cells and a foul smelling discharge. The PRC indicated that the hymen was broken and that they were fresh lacerations. PW3 confirmed on cross examination that PW1 had STI which might have been due to unhygienic conditions and that the fresh lacerations may also have been caused by nails since the child had been itching. The appellant submits that the DNA Report was crucial evidence since the results would assist the court to determine if the offence was committed by the appellant. As such, the evidence of the prosecution on proof of penetration was circumstantial.
6.The appellant further submits that the prosecution evidence was full of inconsistencies and variations. PW1 during cross examination stated that she bled and soiled her pants and that at the time of the incident she was wearing a skirt. PW2 stated that PW1 wore a biker, a trouser and shirt in the two occasions the incident occurred. The appellant states that from the foregoing inconsistencies, it is obvious that the prosecution witnesses were not credible and hence the prosecution case was dented and insufficient to sustain the charges against the appellant.
7.The appellant contends that the charge against him could be pre meditated by PW2. He states that he and PW2 were in a relationship that turned sour after he discovered that PW2 had another child staying with her grandmother, a fact he was unaware of. During re-examination, PW2 stated that she had friendly chats with the appellant who wanted to marry her and the child referred to the appellant as uncle. Moreover, the prosecution failed to produce DNA results despite referring to the same during trial, failure to produce the clothes worn by PW1 as is the practice. As such, the appellant submits that the evidence in the instant case was barely adequate and is enough proof that the prosecution did not prove its case to the required standards. The appellant further relies on Section 36(1) of the Sexual Offences Act and the cases of Robert Mutungi Mumbi vs Republic Criminal Appeal No. 52 of 2014 (Malindi) and Williamson Sowa Mwanga vs Republic Criminal Appeal No. 109 of 2014 (Malindi) and submits that the prosecution never produced evidence that links the appellant to the offence. As such, the appellant prays that the court finds that the prosecution failed to discharge its burden of proof beyond reasonable doubt and acquit him.
8.The appellant further submits that he was known to PW1 and PW2. PW1 referred to him as uncle and PW2 confirmed that they were in a relationship and almost got married to each other. The appellant stated that he has no previous records and from the pre-sentence report there is no adverse report on the character of the appellant to warrant a deterrent sentence. As such, the appellant submits that the sentence meted out against him was grave and excessive in the circumstances and the trial court ought to have considered his defence. Further the appellant relies on Section 8 (1) and (2) of the Sexual Offences Act and submits that the sentence on defilement is predicated upon the age of the complainant and thus the 40 year sentence meted out against him was grave and excessive in the circumstances. As such, the appellant submits that his appeal has merit and prays that the same be allowed.
The Respondent’s Submissions
9.The respondent submits that the element of penetration was proved beyond reasonable doubt by the evidence of PW1, the observations of PW2 and the medical evidence produced by PW3. The respondent relied on Section 2 of the Sexual Offences Act and the case of Mark Oiruri Mose vs Republic (2013) eKLR and submits that PW1 testified elaborately how the appellant did bad manners to her. She gave an account how the appellant grabbed her, took her to his bed, took off his clothes and lay on top of her. She testified that the appellant was not wearing his trousers or underwear. On cross examination, PW1’s evidence was extensively tested and her evidence remained consistent. She was able to confirm that the appellant inserted his penis into her vagina. Notably, her description of the genitalia and how the incident occurred was very elaborate. The witness never reported the incident to anyone because she had been threatened by the appellant. PW2 noticed that she was walking with her legs apart and interrogated her and that is when PW1 informed her that she had been defiled by the appellant. Notably, PW1 was subjected to medical examination days after the incident occurred.
10.PW3 was the clinical officer who examined the minor and noted that she had lacerations on her vagina and that her hymen was broken thereby confirming penetration. He pointed out that the minor also had a bacterial infection which must have been introduced through sexual intercourse. Further, laboratory tests showed infection of the urinary tract. The respondent submits that PW3 produced a Post Rape Care Form as exhibit 2 and a P3 Form as exhibit 3 to confirm his findings. The injuries noted on the medical documents were consistent with the testimony given by the witnesses.
11.The respondent submits that although the appellant contends that fresh lacerations were as a result of scratching by the victim, the act of penetration was proved by the fact that the victim had a broken hymen which was unusual for a child. Furthermore, the absence of spermatozoa does not negate the fact that the victim was defiled.
12.On the issue of identity of the perpetrator, the respondent submits that the appellant was well known to the minor. PW1 was able to identify the appellant by his two names and that she used to call him “uncle”. PW2 corroborated the victim’s evidence by testifying that she and the appellant had been employed at Kabeberu at a Tea Farm and that they were housed by the employer. She confirmed to the court that the appellant was her neighbour and children around the neighbourhood would refer to the appellant as uncle. As such, the respondent submits that identification was by recognition and cited the case of Martin Okello Alogo vs Republic (2018) eKLR. Moreover, the appellant never denied knowing the victim and the other witnesses. He also never denied working at Kabeberu and he confirmed that he was a neighbour to PW2.
13.The respondent submits that the appellant has without doubt been linked to the offence as PW1 gave a clear and consistent description of the appellant, she narrated how and where the incident occurred and the appellant admitted that he was the neighbour to PW2 and PW1. The appellant advanced the defence of alibi stating that he was at work when the incidents occurred and further he testified that he had been framed by PW2 over a love gone sour indicating that PW1 had been coached to give false testimony against him.
14.The respondent further submits that although the trial court was waiting for a DNA analysis report to be availed by the Government Chemist, failure to produce that report was not fatal to the prosecution case. The respondent further submits that the case was adjourned severally because of the unavailability of the DNA report and on 16/11/2020 a Government Analyst was present in court to offer information on the progress of the report. As such, the respondent submits that it was inclined to close its case to avoid further delays in the case. Nevertheless, the respondent contends that sexual offences are proved by way of evidence and not necessarily by way of DNA evidence. To support its contention, the respondent relies on the case of Fappyton Mutuku Ngui vs Republic  eKLR.
15.The respondent relies on Section 143 of the Evidence Act and the case of Alex Lichodo vs Republic (2006) eKLR and submits that it availed all its relevant witnesses to prove the charges as against the appellant. The respondent further submits that the trial court was clear that she believed that the minor was telling the truth and thus her evidence did not require corroboration. The respondent makes reference to Section 124 of the Evidence Act and the cases of J.W.A vs Republic  eKLR and Mohammed vs Republic  2 KLR 138 to support its contention.
16.The respondent submits that the appellant has not pointed out any material contradictions and inconsistencies in the prosecution’s case despite alleging so. The respondent further submits that even if there are any contradictions or inconsistencies they do not go to the root of the prosecution case and urges the court not to put weight on the said contradictions and inconsistencies.
17.The respondent further submits that when the appellant was put on his defence, he opted to give sworn evidence. His defence was that the case arose due to a grudge between him and PW2 due to a romantic relationship gone sour. The trial court considered the appellant’s defence and noted in its judgment that PW2 was cross-examined and she denied that she was ever in a relationship with the appellant. Further, the trial court noted that the appellant’s allegations never dislodged PW1’s credibility.
18.The respondent further submitted that the appellant was charged and convicted with the offence of defilement contrary to Section 8 (1) as read with 8 (2) of the Sexual Offences Act, which provides for a sentence of life imprisonment. The appellant was sentenced to serve 40 years imprisonment. The respondent submits that the sentence was lenient and legal. The respondent further puts the appellant on notice that it shall beseech the court to exercise its jurisdiction and enhance the sentence from 40 years to the legal sentence of life imprisonment.
19.It was further submitted that the evidence on record was enough to sustain a conviction as it was cogent and consistent. As such, the respondent urges the court to find that it proved its case beyond reasonable doubt and find that the appellant was rightly convicted by the trial court. The respondent prays that the appeal be dismissed.
Issues for determination
20.The appellant has cited 9 grounds of appeal which can be compressed into three main issues:-a.Whether the prosecution proved its case beyond any reasonable doubt.b.Whether the trial court considered the defence of the appellant and his submissions.c.Whether the sentence imposed on the appellant was harsh and excessive.
21.This being a first appeal, this court is guided by the principles set out in the case of David Njuguna Wairimu vs Republic  eKLR where the Court of Appeal stated:-
22.Similarly in the case of Okeno vs Republic  EA 32 where the Court of Appeal set out the duties of the appellate court as follows:-
Whether the prosecution proved its case beyond any reasonable doubt
23.Relying on the case of Charles Wamukoya Karani vs Republic, Criminal Appeal No. 72 of 2013 where it was stated that:- “The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.”
24.The law regarding the offence in question is found in Section 8 of the Sexual Offences Act, 2006 provides as follows:-1.A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.2.A person who commits the offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life
26.PW3 the Clinical Officer, produced the Post Rape Care Form (PRC Form) and P3 Form in evidence. He testified that he examined the minor on 5/9/2019 and found that the minor had lacerations on her vagina and a broken hymen which confirmed a history of penetration. He further testified that the lacerations demonstrated that there was forced entry in the vagina carnal. Her outer genitalia had lacerations and there was a whitish discharge and that the minor had plenty of pus cells which was evidence of penetration resulting in an infection as was confirmed by the clinical diagnosis. The contents of the Post Care Rape and the P3 forms were evidence of a broken hymen according to PW3.
27.PW1 testified that the appellant did bad manners to her and pointed to her vaginal area to demonstrate the part of her body that the appellant interfered with. She stated that the appellant lay on top of her and he did not have his trousers. On cross-examination she testified that the appellant removed his underwear, lay on her and touched her urinating thing with his thing.
28.The language used by the complainant that the appellant did bad manners to her is fortified by her gesture of pointing at her private parts. She further stated that the appellant lay on top of her as she lay on top of the bed having lowered his trouser to the knee and removed her underpants. The appellant had by that time removed her pants. PW1 ended by saying she felt a lot of pain in her private parts. This was re-affirmed on cross-examination by PW1.
29.The complainant explained the reason why she did not report the matter to her mother immediately. It was because the appellant had threatened her to beat her up if she told anyone. The mother PW2 a few days later noticed that PW1 was scratching her private parts and decided to examine her physically. PW2 noted existence of bruises and whitish discharge.
30.The appellant said that there was no penetration which was confirmed by the doctor PW3 in his evidence. His contention that he ought to have been examined too, was not necessary to corroborate the complainant’s evidence. Section 124 of the Evidence Act which states:-Provided that where a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.The complainant though a child of tender years explained clearly what the appellant did to her leaving no doubt in the trial court’s mind that she was sexually assaulted.In my considered view, the evidence of PW1 which was credible and consistent was sufficiently corroborated by the medical evidence and by that of PW2.
31.The appellant said that there was contradiction between the evidence of PW1 and PW2 on the clothes she was wearing on the material day. What matters herein is whether the appellant defiled PW1 or not. Any contradiction on the clothes won is minor and would not make the conviction unsafe. The trial court found PW1’s evidence cogent, credible and also trustworthy. Furthermore the incident was concealed by PW1 and only came to light five (5) days later. PW2 may not have taken cognisance of the material day and it is possible to forget what her child was wearing. However, PW1 had a hell of a day that left her traumatised. Such an event would still be ringing a bell in her mind and it is not easy to forget what she was wearing. I would take the evidence of PW1 in that regard as reliable and credible that she was wearing a skirt and underpants on the material day. Reference is made to the case of Philip Nzaka Watu Vs RepubliceKLR where the court observed that:
32.As regards the contention that the trial court did not take into account the defence and submissions of the appellant, what comes forth from the appellant is the allegation that the mother of the complainant had a grudge against him and thus framed the case against him. PW2 in cross-examination denied the allegation and stood firm in her answers to the relevant questions. It would be out of character of a mother of a child of tender years to use her with a view of a frame-up bearing in mind the trauma the child would go through during the investigations and trial of fake case. The other issue is it is highly unlikely that the doctor who adduced credible medical evidence would be used to frame the appellant. The trial magistrate considered the defence of the appellant sufficiently and rejected it as having no merit. I have not found anything in the evidence to make me believe the appellant’s contention that he was framed.
33.As for the age of the child, PW2 the mother produced the birth certificate showing that PW1 was born on 22/08/2009 and was aged ten(10) years at the time of the offence. The P3 form showed that the complainant was nine (9) years at the time of the medical examination. The doctor did not demonstrate any evidence of age assessment. The court will adopt the documented age of ten (10) years in the birth certificate.
34.Regarding the identification of the accused, PW1 said she knew the accused before the incident and it was a matter of recognition which has been found to be easier than identification. PW2 said the accused was her next door neighbour in the plot where she lived. The incident took place during the day and identification was clear. It is my finding that the appellant was positively identified.
35.I am of the considered view that all the ingredients of the offence of defilement were satisfied by the prosecution. As such, it is my finding that the case was proved beyond any reasonable doubt.
Whether the sentence was harsh and excessive.
36.The respondent submitted that the sentence meted by the trial court was lenient and illegal and urged this court to enhance the sentence from 40 years to the legal sentence of life imprisonment.
37.In Bernard Kimani Gacheru vs Republic  eKLR and Ahamad Abolfathi Mohammed & Another vs Republic  eKLR the courts held that as a general rule sentence is a matter that rests in the discretion of the trial court and it must depend on the facts of each case. On appeal, the appellate court will not easily interfere with the sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account, some wrong material, or acted on a wrong principle. Even if, the Appellate court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist.
38.Section 8(2) of the Sexual Offences Act No. 3 of 2006 provides that:-A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.
39.The aggravating factors in this case are that, the minor was a child of tender years and the appellant committed the offence twice. Further, the minor was left with a serious medical condition and lifelong complications that would probably require surgical procedure to correct. I have weighed these factors against the fact that the appellant was a first time offender and that he was a middle aged man of forty six years. The court cannot however lose sight of the seriousness of the offence and the trauma that goes with the offence of defilement which is detrimental to the child’s mental and physical health.
40.In regard to enhancement of sentence, it is trite law that the appellant ought to be notified of such a request before or during the hearing of the appeal so that he has an opportunity to respond. The respondent raised this issue in the submissions which denies the appellant his right. As such, I decline to consider enhancement of sentence in this appeal.
41.Consequently, I find no merit in this appeal. The conviction was safe and based on cogent evidence, and is hereby upheld. I find no reason to interfere with the sentence which is within the law and is commensurate with the offence.
42.The appeal is accordingly dismissed.
43.It is hereby so ordered.