1.The appellant was convicted of the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual offences Act No. 3 of 2006 and sentenced to serve 20 years imprisonment. The particulars of the offence were that on the 9th August 2020 at (place withheld) within Marsabit County, he intentionally and unlawfully caused his penis to penetrate the vagina of G.H, a child aged 14 years.
2.The appellant was aggrieved by the conviction and the sentence and filed the instant appeal. The grounds of appeal are:1.That the learned trial magistrate erred in law and in fact by relying on false evidence of the doctor PW3.2.That the learned trial magistrate erred in law and in fact by imposing a harsh and excessive sentence of 20 years imprisonment.3.That the learned trial magistrate erred in law and in fact in not considering the appellant’s mitigation.
3.The appeal was canvassed by way of written submissions. The appellant appeared in person. He submitted that the complainant in the case was a minor. That her evidence required corroboration by another witness which was not the case. That the medical evidence was not conclusive and did not support the charge of defilement. That there was no evidence that the hymen was freshly broken. That the clinical officer PW3 stated that he examined him but never connected him with the white vaginal discharge that was found on the complainant. That there was no independent evidence adduced to support the evidence of the complainant and PW3.That in the premises the trial magistrate erred in convicting him based on the evidence adduced by PW3.
4.The appellant submitted that the trial court failed to consider that there was a grudge between him and the parents of the complainant over their failure to pay him outstanding wage arrears of Ksh.20,000/-. That the charges are fabricated to avoid paying him his dues.
5.It was submitted that the trial court erred by taking into account the evidence of PW2 and 4 when they did not witness the alleged sexual assault. That their evidence was hearsay and ought not to have been considered. That the case was in the final analysis not proved beyond reasonable doubt.
6.Thea appellant submitted that the sentence of 20 years was harsh and excessive. That the trial magistrate did not consider the time spent in remand and that he was a first offender.
7.The state through the Senior Principal Prosecution Counsel Mr.W.P. Ochieng submitted that the case against the appellant was proved beyond reasonable doubt. That the age of the complainant was proved at 14 years by production of age assessment report which evidence was corroborated by the evidence of the complainant`s mother PW2 who confirmed that the girl was aged 14 years.
8.Counsel submitted that the complainant gave graphic narration of how she was penetrated by the appellant. That her evidence was credible and truthful. That the trial court rightly believed her evidence. That the fact of penetration was conclusively corroborated by medical evidence adduced of by PW3 who examined the complainant and found her with vaginal bruises, broken hymen and sperm deposits. Consequently, that penetration was proved beyond reasonable doubt.
9.It was submitted that the appellant was an employee at the home of the complainant and therefore that identification was not an issue. That he admitted to have been at the home and left. That his alibi that he was at the market was neither tested nor corroborated. He did not call any witness to firm up the alibi. That the allegation of frame up was not backed by evidence. That he never brought up the issue before investigators. Neither did he explain how the complainant managed to orchestrate this whole episode which involved police officers and doctors.
10.It was finally submitted that the sentence meted out by the court was just and in concurrence with the provisions of Sexual Offences Act.
The Evidence –
11.The evidence adduced before the trial court was that the complainant is a 14 year-old girl. She was living with her mother Pw2. The appellant was employed as a herder by the father to the complainant.
12.That on the material day at about 10 am the complainant`s mother went to church and left the complainant at home to take care of a young boy aged 4 years. The appellant was off duty on that day. That after the complainant`s mother left, the appellant went to the home. He found the complainant inside their house. He then slapped the boy unprovoked. He then unzipped his pair of trousers and pulled out his penis. He removed her pair of leggings and under pant. He led her to the bedroom where he made her to lie on the bed. He lay on top of her and inserted his penis into her vagina. The complainant screamed in pain. When he was done he went away. Her mother returned home at 1pm and she told her what had transpired.
13.Upon receiving the report, the complainant`s mother screamed and called neighbours who responded and went to look for the appellant. As he was being sought the appellant went to the home of the complainant with a colleague. He started to pack his clothes. Irate neighbours pounced on him and started to beat him. The complainant`s mother restrained them and locked him in a house. Police men were called. They arrived and arrested the appellant. The complainant was issued with a P3 form and escorted to Ramata dispensary where she was examined by a clinical officer, PW3. She was found with a bruised labia minora and a broken hymen membrane. The clinical officer observed that she had a whitish vaginal discharge. A high vaginal swab was done that revealed presence of non-progressive spermatozoa. The clinical officer formed the opinion that the complainant had been penetrated sexually. The appellant was also taken to the facility. The clinical officer examined him but did not note any bruises or lacerations on his penis.
14.The complainant was later taken to Moyale sub-county hospital where age assessment was carried out and was estimated to be 14 years. The appellant was charged with the offence. During the hearing the clinical officer PW3 produced the P3 form and Post Rape Care form as exhibits, P.exh.1 and 2 respectively. The Investigating Officer PW4 produced the age assessment report as exhibit, P.exh.3.
Defence case –
15.When placed to his defence the appellant stated in a sworn statement that he was employed as a herder by the complainant`s father. He was living at the home. That on the material day the complainant`s mother went to church. He was left at the home with the complainant, a son to the complaint and the small boy. He later left the others at home and went to the market.
16.That the complainant`s father owed him salary arrears of Ksh.20,000/- which they had promised to pay him after church. He returned to the home with a friend and found the complainant`s mother having returned from church. She was in her house with her children. Her son called Dida was canvassing with two villagers at the backyard of the house. That all over a sudden the complainant`s brother and sister started making allegations that he had done something bad to the complainant. It is then that he was arrested and locked up in the house. The police were then called and he was taken to the police station. He denied that he committed the offence. He said that the charges were machinations by the complainant`s father to deny him his money.
Analysis and Determination –
17.This being a first appeal the duty of the court is to analyze and re-evaluate the evidence adduced at the lower court and draw its own independent conclusions while bearing in mind that the trial court had the advantage of seeing and hearing the witnesses testify – see Okeno v Republic (1972) EA 32
18.The appellant challenged the conviction on the ground that the evidence of the minor PW1 ought to have been corroborated by other evidence which was lacking in this case. That the medical evidence adduced in the case was not conclusive.
19.There was no doubt in this case the complainant was a child of the age of 14 years. Her mother PW2 said that she was 14 years old though she did not know her date of birth. The evidence on the age of the complainant was corroborated by the age assessment report P.exh.3. The age of the complainant was therefore proved at 14 years.
20.Guidance on the issue of corroboration in sexual offences is to be found in the Ugandan case of Bassita v Uganda S. C. Criminal Appeal No. 35 of 1995 where the Supreme Court held that:
21.Section 124 of the Evidence Act allows a court to convict on the sole evidence of the minor where the court is satisfied that the child is telling the truth.
22.In this case the complainant gave a graphic narrative of how the appellant defiled her at her parents` home. She reported the incident to her mother at the earliest opportunity. The fact of defilement was supported by medical evidence that there were bruises at labia minora and the hymen membrane was broken. A laboratory examination indicated that there were spermatozoa deposits in the vagina of the complainant. The presence of spermatozoa lend credence to the evidence of the complainant that the appellant had defiled her. The evidence of the complainant was therefore conclusively corroborated by medical evidence.
23.The appellant alleged that the charges are fabricated due to a grudge between him and the parents of the complainant over payment of salary arrears. The complainant`s mother PW 2 stated in cross-examination that she had paid the appellant his dues on the previous Friday before the date of hearing. She denied that the charges were fabricated so as to avoid paying the appellant his dues.
24.The trial magistrate considered the defence of the appellant and stated that:I do not see how PW2 and members of her family would have managed to scheme up with a medical professional and the police to lie to this court at her behest. In the circumstances, I reject the accused person`s defence in its totality.
25.The trial magistrate had the advantage of seeing the witness testify. He was in a better position to weigh the credibility of the witness. There is nothing to indicate that he was wrong in believing the evidence of the witness. The appellant in fact never questioned the complainant’s mother PW2 that she owed him Ksh.20,000/= in salary arrears. There was no reason to believe the appellant`s defence. The defence was rightly dismissed.
26.The appellant was an employee at the home of the complainant. The incident occurred during the day. Identification of the appellant was therefore not an issue. There was no truth in the appellant’s defence that he was all through at the market at the time the complainant claims to have been defiled. The home of the complainant was close to the market. The appellant had the time to go back to the home of the complainant, defile her and go back to the market.
27.In the whole the prosecution had proved all the elements of defilement against the appellant. The evidence adduced against him was overwhelming. The conviction is thereby upheld.The appellant submits that the sentence of 20 years is manifestly harsh and oppressive. The minimum sentence for defilement of a child between the age of 12 and 15 years is 20 years imprisonment. A minimum sentence cannot be said to be harsh or excessive. Nothing therefore turns on this ground of appeal.
28.The upshot is that the appeal is devoid of merit and is hereby dismissed.
DELIVERED, DATED AND SIGNED AT MARSABIT THIS 9TH DAY OF JUNE 2022.J.N. NJAGIJUDGEIn the presence of:Mr. Magero for RespondentAppellant:- Present in personCourt Assistant:- Peter30 days Right of Appeal.